Subjectright (S), a reciprocal to Copyright (C)
By: James Fung, Steve Mann and Kyle Amon
March 28, 2006
This article presents the argument that any debate about copyright is inherently unbalanced, because it preferentially considers the right of a source entity, without equal regard to the right of a destination entity. Accordingly, we propose the concept of Subjectright, i.e. recipient rights, as a reciprocal to copyright.
In contrast to the analogous mechanisms of Intellectual Property (Copyright, Trademark, Patent, etc.) that protect that which is offered through predominant volition of a “transmitient”, Subjectright also covers that which we give off without conscious thought or effort, as well as that which we are exposed to simply through our existence.
Subjectright includes our physical facsimile, as might be protected by the Humanistic Property License Agreement (HPLA), http://wearcam.org/clerks.htm, http://wearcam.org/hpla.htm, http://wearcam.org/hp_manifesto.htm as well as our spoken word, molted detritus and mental engrams.
In this paper, we expand upon the principle of Subjectright to include that which we receive through eminent volition, and, in particular, that which we receive as subject, thus have been SUBJECTed to, often without our consent and sometimes even against our will.
In order for information to propogate, five functions must exist. There must be a creator, a transmitter, a conduit, a reciever and a processor of information. All five may reside within the same entity or be distributed, singly or multiply, between various entities. If any one of these five functions is lacking, information propogation can not occur.
Current Intellectual Property law and practice only affords privledges to the “transmitient” (creator, transmitter and conduit functions of information propogation). While Copyright(c), for example, provides extensive powers to the creator, transmitter, and/or conduit of information (e.g. an author, publisher, broadcaster), Subjectright, recognizing that individuals are recievers (eg. consumers) and processors (eg. users) as well as creators (e.g. producers), transmitters and conduits of information, extends commensurate powers to them as such.
Since we hold it to be self evident that all entities come into existence free, subject to none but their own mortality, having an inalienable right to maintain this freedom, we propose that a reciprocal set of privileges to those afforded by current Intellectual Property law to creators, transmitters and conduits of information, as instigators, be extended to conduits, recievers and processors of information, as subjects, under Subjectright(s), and, furthermore, that information instigators be morally and legally bound by Subjectright(s), necessitating them to respect the inherent, independent volition of all entities as free beings, and their right to maintain this freedom, in order to provide a means of redress when information instigators contaminate entities with unwanted information as subjects.
While Copyright is intended to protect the deliberate creation and transmission of information, Subjectright is intended to protect the primarily involuntary disclosure of information (e.g. physical facsimile, spoken word, molted detritus, etc.), as well as the often involuntary receipt of information (e.g. marketing and advertising, music, video, etc.) as mental engrams.
Note that in this sense of reciprocality Copyleft (i.e. Gnu Public License, GPL) is not really a reciprocal for copyright, in the sense that both Copyright and Copyleft attempt to protect a transmitient, although in quite different ways. In particular, to the extent that fame and fortune are fungible, Copyright and Copyleft are two sides of the same coin, whether that coin be a coin of commerce, or a coin of recognition and social status.
In view of the often involuntary nature of this exchange with regard to the recipient (eg. subject), it has been argued that Subjectright deserves stronger protection than Copyright. See, for example, First Monday, volume 5, number 7 (July 2000), URL: http://firstmonday.org/issues/issue5_7/mann/index.html
A scholar’s right to cite sites
Legal development is sometimes said to be significantly more dilatory than technological development (notwithstanding our desire to state that “The trouble with law is that so many new laws are created so quickly that technology is having a hard time catching up.”). As society evolves, the original intent of old laws is often lost and they begin to be misapplied as a result. In some cases, after a significant amount of subtle, social evolution, the results can be egregious. It is therefore not very surprising that many Intellectual Property laws are now in conflict with the reasonable freedoms of scientific, scholarly, or academic pursuit.
Consider, for example, the Felton case, http://eff.org/sc/felten/ Felten
"Freedom of Speech should not be sacrificed in the recording industry's war to restrict the public from making copies of digital music.
When a team led by Princeton Professor Edward Felten accepted a public challenge by the Secure Digital Music Initiative (SDMI)to break new security systems, they did not give up their First Amendment right to teach others what they learned. Yet they have been threatened by SDMI and the Recording Industry Association of America (RIAA) to keep silent or face litigation under the Digital Millennium Copyright Act (DMCA). Professor Felten has a career teaching people about security, yet the recording industry has censored him for finding weaknesses in their security. USENIX regularly publishes scientific papers that describe the weaknesses of technologies, but they are chilled by RIAA litigation threats.
EFF is asking the court to affirm the right of these scientists to publicly present what they have learned and the right of USENIX to publish the scientists' paper in their conference proceedings. EFF has also asked the court to overturn the anti-distribution provisions of the DMCA as unconstitutional restraints on the freedom of expression.
"When scientists are intimidated from publishing their work, there is a clear First Amendment problem," said EFF's Legal Director Cindy Cohn. "We have long argued that unless properly limited, the anti-distribution provisions of the DMCA would interfere with science. Now they plainly have."
"Mathematics and code are not circumvention devices," explained Jim Tyre, an attorney on the legal team, "so why is the recording industry trying to prevent these researchers from publishing?"
USENIX Executive Director Ellie Young commented, "We cannot stand idly by as USENIX members are prevented from discussing and publishing the results of legitimate research.""
Another important case fighting the infringement of current Intellectual Property laws on the First Ammendment is the 2600 case: http://www.2600.com/ and the appeal to a loss against a Motion Picture Association of America (MPAA) suit in August 2000. http://www.2600.com/news/display.shtml?id=211 The 2600 website says of this appeal,
"The case arises from 2600 Magazine's publication of and linking to a computer program called DeCSS in November, 1999 as part of its news coverage about DVD decryption software. DeCSS decrypts movies on DVDs that have been encrypted by a computer program called CSS. Decryption of DVD movies is necessary in order to make fair use of the movies as well as to play DVD movies on computers running the Linux operating system, among other uses. The Studios object to the publication of DeCSS because they claim that it can be used as part of a process to infringe copyrights on DVD movies.
Universal Studios, along with other members of the Motion Picture Association of America, filed suit against the magazine in January 2000 seeking an order that the magazine no longer publish the program. In the case, formally titled Universal v. Remeirdes, et. al., the District Court granted a preliminary injunction against publication of DeCSS on January 20, 2000. By August 2000, after an abbreviated trial, the Court prohibited 2600 Magazine from even linking to DeCSS."
Scholarly discourse and academic research seeks to spread new ideas, new discoveries, and in general new thoughts. The medium of thought conveyence is language, without which there can be no transmission of thought and thoughts must remain privy to their creators alone. Language is thus the transmitter of thought and it’s medium is the articulate symbol, manifested in speech or inscription, conveyed by an ever increasing number of media.
The articulate symbols of language were initially transmitted, and thought thus propogated, exclusively synchronously by phonetic utterance through the medium of air (ie. speech). Asynchronous transmission, and thus mass propagation, of thought became possible with the advent of inscription since the mediums of inscription were less mutable than the medium of air. It was then discovered that even speech could be inscribed on certain media and electrically reproduced, engendering an asynchronous manifestation of a type of thought transmission that was previously possible only synchronously. Ultimately, electromagnetic media was found to be extremely versatile, facilitating both synchronous and asynchronous transmission of all antecedent media necessary for the transmission and propogation of thought and, with the advent of the internet, with a fine degree of control.
The extreme versatility of electromagnetic media fostered it’s rapid proliferation as a multiply manifested thought transmission medium second in prominence only to the medium of air in conveyance of the spoken word and pictorial symbol.
It’s prominence has resulted in a devolution toward the more mutable paradigm of television and away from the less mutable literary tradition of the book. This transformation, in concert with the expansion, misuse and abuse of intellectual property laws, not only threatens the right and ability of scholars to make enquiry and publish results, but also to make scholarly citations to build upon in the tradition of science and scholarly thought.
For example, many web sites utilize CGI scripts that cause a single URL to reference multiple documents, making it impossible for scholars, critics, and scientists to cite and properly credit sources of reference and specific quotation, omission of which causes the work to suffer, thereby reducing it’s aggregate social benefit, when uncitable material is left out and exposes the author to intellectual property infringement liability when uncitable material is included for the benefit of the work and, consequently society, regardless. Moreover, complete web sites often vanish suddenly. For example, a scientific article referencing a January 22, 2001 article on Mediated Reality and EyeTap? Technology, published on the about.com wearables site, http://wearables.about.com/library/weekly/aa012201a.htm, will no longer be found by scientists wishing to extend work based upon this article in the future since it is no longer maintained on the about.com site, presumably because it is no longer considered profitable (e.g. does not generate enough advertising revenue, or the like).
One possible solution is to backup or mirror sites when cited. For example, an article published on the eyetap.org site, making a scholarly reference to this article, could cite a mirror site: http://about.eyetap.org/library/weekly/aa012201a.shtml. Each article being written would then contain all of its references to at least one level of recursion. With increases in mass storage capability, it might even be reasonable to bundle articles to two levels, but certainly one level would be reasonable.
While the creation of backup and mirror sites of scholarly citations helps ensure, in a technical sense, access to these works, current intellectual property law may criminalize those scholars who seek to preserve the works they reference. For instance, consider an academic journal which charges fees for access to their published articles. Such a journal is not responsible for ensuring long term access to the published article. However, were a scholar to mirror the article to help ensure its availability, existing intellectual property law may expose the scholar to potential legal action for circumventing the access fees charged by the journal publication. Furthermore, recent laws favor commerce by revoking the legal concept of fair-use and scholarly backup.
Consider, for example, Bill C-32 - As passed by the House of Commons http://www.pch.gc.ca/wn-qdn/c32/c-32toce.html
With the advent of wearable computing http://wearcam.org/ieeecomputer/r2025.htm Computer, Vol. 30, No. 2, February 1997 it is now possible that a person can remember everything they take in. Thus we are at a pivotal era (or will soon witness such an era) when an individual can remember what they have been taught, and that individual can also teach others. When abilities we currently attribute to ‘digital’ media move within the realm of second nature ‘personal abilities’ through such inventions, restrictions upon the person’s use of what they take in becomes akin to the notion of ‘thought police’.
In order to protect against such ``Thought Police what is needed is a new kind of agreement that is binding on the Transmitter (not just upon the Receiver) of information.
It is suggested, therefore, that Subjects would apply this Subjectright philosophy to information received, and that persons not wishing to release information under Subjectright, refrain from exposing Subjects to said information.
This ``right to teach therefore becomes recursive under Subjectright. A person bound to Subjectright simply declares: ``You have no right to teach me unless you grant rights for me to teach others, or more formally: ``By teaching me any new knowledge, you agree to be bound by the following Terms and Conditions: … one of which must permit re-teaching of what is taught.
Teaching is a form of brain damage, in the sense that once taught, we can never really forget. This brain damage is relatively permanent, e.g. the synaptic weights of the brain are permanently altered by advertising, loud (sometimes unwanted) music that is inflicted upon us, as well as by a good joke one can never forget. quote: ``There’s a song going around in my head… [words to a song about trying to forget a song, goes something like “there’s a song going around and around, there’s a song going around in my head and i don’t want to hear it no more, no more…”]
(This example underscores the difficulty in eradicating knowledge, and when that knowledge is unwanted, it causes a sort of pollution to one’s memory space…).
Thus there is a need for a concept such as subjectright that deals not only with the right to be free of unwanted violations of both privacy and solitude (such as being free of unwanted brain damage, unwanted insertion of material), but also to be free to provide scholarly discourse on what is learned.
Subjectright and Copyright
Even though under existing copyright laws, works may be reproduced for scholarly dissemination or criticism, such protections are not afforded to many of the day-to-day situations people encounter, whether or not conscious efforts are made to obtain or disseminate media. For instance, company logos used in advertising conveniently deliver the “stamp of the transmitter”, which provide the subjected and inflicted a clear target towards which to exercise their Subjectrights.
It was suggested that a fee could be charged by an unwilling Subject.
http://firstmonday.org/issues/issue5_7/mann/index.html (the cracker, hacker analogy of the brain as a computer being deliberately compromised by malicious spammers; realworld advertising as spam) The fee would be charged to the perpetrator of this pollution, or to those who benefit from the pollution (or both).
It would not be unreasonable to charge a fee for both the Reception of the unwanted information pollution, as well as for the storage, and for any damage that the pollution caused on the storage medium.
As if trying to add insult to brain injury, those bombarding us with unsolicited sounds, sights, and other forms of radiation pollution have the nerve to then try to charge us for remembering what we didn’t really want to learn. Such is the nature of Copyright, that one can be unwittingly or unwillingly SUBJECTed to input, and then be prevented from legally reproducing this same detritus. Stallman’s article entitled “Reevaluating Copyright: The Public Must Prevail”, examines the origins of copyright, pointing out that at the onset of the printing press, copyright was instituted as a method of encouraging the creation of works by publishers by restricting the freedoms of people to copy or redistribute those works. Such a system worked to allow the publisher to charge for access to their works. The article points out that at the time, since individuals could not distribute the works without a printing press, which few could afford, the agreement mutually favoured the public who gave up little, while allowing for publishers to profit from their work.
Since that time, however, technology has made it possible for individuals to distribute and reproduce material. Furthermore, while in the days of the printing press, reproduction of works had some physical cost associated with it in the form of the cost of paper and ink and transportation, modern distribution techniques have no such costs associated with them other than the rather small cost of electricity and bandwidth.
The situation has thus placed many works under copyright into a freely reproducible and publicly sharable medium where many people can benefit from the works without loss of quality in reproduction of the original.
Attempting to license or charge individuals for access to publicly accessible or mass marketed works which said individuals are bombarded with in an otherwise freely reproducible media is THEFT from Subjects. Attempting to block proliferation of reproducible, mass marketed teachings to Subjects is THEFT against those Subjects.
Perpetrators of this THEFT are asked to either cease and desist in such bombarding of Subjects with such material, or at the very least to allow Subjects to reporduce that which they are bombarded with.
If such works require an individual to pay a licensing fee or to agree to unethical or unreasonable conditions (see for example, http://wearcam.org/seatsale/poster/poster_agree_terms.htm) this is THEFT in the sense that it violates the Terms and Conditions of the Subjectright Transmitient License Agreement.
In such cases the Subject (Recipient) is thus required (by Subjectrights) to charge the content provider a de-licensing fee, or ``disservice fee.
Teaching as brain damage
Teaching involves stimulating the brain in order to impart knowledge, learn a skill or condition a frame of mind. The brain and consequently the individual, if affected by these stimuli, changes as a result. Teaching, a crucial component to human interaction and development, allows the exchange of ideas to take place. When neurological modification is undesired and unconsentual, the individual’s state of mental development does not progress, grow or improve, but instead regresses. The degree of regress is proportionate to the amount of mental clutter absorbed, due to the processing and filtering operations that must be done in an attempt to reverse the undesired teaching affects (in returning to the state of mind before the change). The persistence of memory and the absorption of information and feelings (the unconsentual nature of the teaching creates tension and conflict in the mind, bringing about negative emotions) into the subconscious mind ensure that neurological modification can never be entirely reversed. Is teaching brain damage? Perhaps we have a right to answer yes, if the teaching was unsolicited, and argue that this residual mental detritus constitutes brain damage proportionate to the quantity and intensity of the unconsentual teaching. Although the act of teaching is the same with or without consent, the consequences and resulting state of mind of the subject can differ substantially. Perhaps a good analogy is sexual contact: there’s a big difference between consentual sexual contact, and unconsentual. The physical activity is the same in both cases, but the result (happily married versus criminal activity) can be quite different.
Crime scene documentation
If the Subject witnesses or documents evidence of attempts to stop the proliferation of Subjectright media, the Subject is compelled to take legal action against such criminal activity (e.g. activity of causing brain damage with or dependency upon material that is not freely re-teachable).
Pirates are NOT Thieves (By who’s law?)
When it is said whether an act is legal or illegal, we must ask the question as to who’s law? Canadian law? American Law? EXISTech Corporation’s law? or Internic’s law?
Piracy did not, originally, pertain to software, but, rather, described captains of pirate vessels who were given permission by an issuing government to raid and plunder on the open seas ships of another government. The issuing government, in return, guaranteed safe haven at their ports, and allowed pirates to profit from their plunder (through what was known as a letter of writ). The accumulation of private wealth by this method was called “privateering”[Petrie, Donald A, “The Prize Game: Lawful Looting on the High Seas in the Days of Fighting Sail”, Naval Institute Press, Annapolis, Maryland, 1999], and was not regarded as theft, since pirates were acting legally within the domain of their own government.
Governments, at the time, made piracy and privateering not only legal, but also profitable. Thus pirates were the ones who were in fact government sponsored and supported. Privateering made trading and travel upon the otherwise open medium of the seas a dangerous proposition.
Today, “piracy” is commonly applied to the copying of software, or music. However, considering, the origins of privacy and privateering, we can re-examine the current trading on the otherwise open seas of moving digital bits around and determine who best fits the definition of a “pirate”.
There is also the notion of “fair use”. There is a well established “fair use doctrine” in the scholarly and scientific community which must be continued, lest we enter the “new dark ages”. As is well known, the origin of the internet has in its roots in the development of a method to share work between scholars. The development of copyable floppy disks, writeable CDs and widespread internet access allowed for ease of `trade’ upon the high seas.
However, many service providers and copyright holders are trying to prevent such “fair use”. Attempts to conceal, obfuscate, and prevent proper copying, backup and the spread of Subjectright works could thusly be labelled “privateering” (piracy). Many efforts to create pay systems and encryption to prevent copying within these mediums on behalf of the publishing companies would then be considered engaging in piracy. Certainly attempts to block/intercept the exchange of or extract payment for works exchanged between individuals (i.e. on the open seas) are also acts of “piracy”, supported through letters of writ issued by Copyright holding publishers.
Putting works that we are Subjected to into a freely accessible, reproducible medium (to escape the plundering pirates), may then be regarded by some as a noble and publicly beneficial activity.
Some might even argue that one should extend this basic concept to include “ripping” CDs, scanning and copying books, de-encrypting DVDs, opening source-code, reverse-engineering software, and regarding these practices as a noble and publicly beneficial activity, to counteract the piracy caused by otherwise inflicting such material on Subjects, often without the consent of the Subjects.
Such piracy is often committed by those who seek to enforce copyright. For instance, in 1996 the American Society of Composers, Authors and Publishers (ASCAP) received much media attention when it applied a licensing fee to the American Campers Association (ACA) for use of campfire songs. ASCAP does and remains in a position to, under existing copyright laws, levy fines and require licensing for summer camps to hold campfire sing-a-longs which include songs such as “Puff the Magic Dragon” and “Happy Birthday”. Unfortunately, many people have been unwillfully exposed to such music in unlicensed situations and have developed, in a sense, a cultural addiction to these songs. A birthday would not be complete without a “Happy Birthday” song, and much would be lost at a silent campfire, or one where the singers sing in fear of litigation. Furthermore, notice is not given to the listeners that these songs are subject to copyright and licensing, and thus no choice is given to the listeners but to learn the music.
Such a situation could only have evolved under copyright laws where private performances are allowed and encouraged, thus teaching the dependency and placing it into the freely accessible and sharable medium of verbal tradition, but public performances must be licensed, and thus profit may be extracted from a taught dependency. However, within the SubjectRights? framework, by exposing individuals to songs, ASCAP must then allow subjects to share it freely and reproduce that which they
have been involuntarily exposed too. ASCAP is still allowed to own copyrights to songs, but must find a more responsible way to market them to ensure they are only heard by those who are truely willing to pay their fees. (See “WHEN IN DOUBT, DO WITHOUT: LICENSING PUBLIC PERFORMANCES BY NONPROFIT CAMPING OR VOLUNTEER SERVICE ORGANIZATIONS UNDER FEDERAL COPYRIGHT LAW”, Washington University Law Quaterly Volume 75, Number 3, Fall 1997 http://ls.wustl.edu/WULQ/75-3/753-5.html on page says “Cite As 75 Wash. U. L.Q. 1277”.)
“Privateering” which might better describe acts commited by large corporations, and their paid lawyers.
Subjectright attempts to provide a sense of balance to an otherwise one-sided (e.g. Transmitter-only) point of view. Subjectright looks at both the Transmitter and Receiver of information.
As we enter the cybernetic era (from software to softwear, to implantables), we will see a blurring of the distinction between thinking and computing.
SoftWARE? embodies the idea of WARE:
Dictionary definition of “ware”
Main Entry: [^3]ware Function: noun Etymology: Middle English, from Old English waru; akin to Middle High German ware ware and probably to Sanskrit vasna price – more at VENAL Date: before 12th century 1 a : manufactured articles, products of art or craft, or farm produce: GOODS - - often used in combination b : an article of merchandise 2 : articles (as pottery or dishes) of fired clay 3 : an intangible item (as a service or ability) that is a marketable commodity
Main Entry: ve.nal Pronunciation: ‘vE-n[^&]l Function: adjective Etymology: Latin venalis, from venum (accusative) sale; akin to Greek Oneisthai to buy, Sanskrit vasna price Date: 1652 1 : capable of being bought or obtained for money or other valuable consideration : PURCHASABLE; especially : open to corrupt influence and especially
bribery : MERCENARY (a venal legislator) 2 : originating in, characterized by, or associated with corrupt bribery (a venal arrangement with the police) - ve.nal.i.ty /vi-‘na-l&-tE/ noun - ve.nal.ly /‘vE-n[^&]l-E/ adverb (C) 1997 by Merriam-Webster, Incorporated
Now having taught those 2 new words, WARE and VENAL, we hopefully all now have a right to use the English language without paying a word usage fee.
We were required to attend a public school, and we were exposed to these words against our will. We were forced to eat these words, now at the very least we should be free to use these words.
Likewise, the teaching of software skills (e.g. teaching someone how to use a program) must carry with it the free use of that program, in order to avoid brain damage arising from learning something (very hard to unlearn) that the person will not have free access to. Accordingly, it is our duty as teachers to teach people only how to use programs that are freely available to them at a later point in time.
Teaching a dependency (e.g. to get persons addicated to a certain product they must then buy) is theft.
The effects of copyright, left, and center, tend to focus on protecting the interests of creators, producers, and distributors of information. We presented a reciprocal concept, namely that of Subjectright, that considers the rights of those who are exposed to informatic content, whether by choice, by accident, or against their will.
We believe that especially when people are subject to informatic content against their will, that they have every right to “rip, mix, burn” or do what they like with it. Moreover, we also believe that any discussion of copyright is inherently unbalanced if it does not also consider subjectright.