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May 2002

Posted 6 May:

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Response to Shropshire

Dear Locus Online,
     In his screed posted today (, 05 May 2002), Philip Shropshire makes a number of assertions about Harlan Ellison's antipiracy suit that don't bear much in the way of scrutiny. Several of them, unfortunately, I may not comment upon due to a protective order entered in the matter; suffice it to say that a clearer understanding of the facts might give Shropshire some pause. No such restrictions apply to comment upon Shropshire's poor logic.
     (1) Assumption: If something benefits corporate content-holders, it is inherently bad, even if it also benefits individual content-holders (see Shropshire, notes 4-7 and accompanying text).
     I'd laugh at this argument if it weren't presented in such deadly earnest. What Shropshire really seems to object to is anything that might conceivably help Evil Corporate Interests. It matters not to him that the same principles and same apply to EVERY copyright holder. A rational approach would advocate reform of work for hire and appropriate limitations on copyright term for corporate/organizational creations, both of which underlie virtually all of the admitted problems that Shropshire invokes. Basically, this argument is an ad hominem attack in which Shropshire has (less than cleverly) tried to redefine even "who" is at issue.
     The most telling misstatement is the blanket assertion that Harlan doesn't care about Dmitri Skylarov or other problems with copyright protection on the internet, and therefore is really just protecting corporate interests here (Shropshire, notes 9-15 and accompanying text). Shropshire offers no warrant for this assertion. In a stunning, but all too typical, bit of illogic, Congress included both the limitations on ISP liability (17 U.S.C. 512), which are at issue in Harlan's case, and limitations on "circumvention of copyright control mechanisms" (17 U.S.C. 1201-05), which are at issue in the Skylarov matter, in the same piece of legislation--Digital Millennium Copyright Act. THEY ARE UNRELATED, except in that they both potentially concern copyrighted material in digital form--which can be said about the remainder of the Copyright Act, too. The anticircumvention provisions have nothing whatsoever to do with Ellison's case. Nothing. Except, perhaps, in the minds of those who equate any restriction on the ability to obtain and transfer entertainment digitally, regardless of the wishes of the owners of that entertainment, as somehow destroying their inalienable rights. Their right to exchange information is another issue entirely.
     (2) Conclusion: Because Ellison's settlement with Critical Path doesn't stop all alternate forms of exchanging copyrighted material, it is worthless (Shropshire, notes 16-23 and accompanying text).
     I cannot directly comment upon Shropshire's characterization of the settlement except to note that it is far from complete. Settlements of this kind, and their particular provisions, are confidential. However, that said, Shropshire's argument fails as a matter of logic. It is akin to those who would argue that, since any lock can be picked, it is worthless to put a lock on anything. Ellison's lawsuit is not principally about dealing with determined infringers. It cannot be. It was never intended to be. It is about minimizing the damage caused by casual infringements. A lock will not keep a determined thief out, but it will deter the casual passerby from grabbing my television set from my living room. Efforts to educate the public on the value of entertainment (as opposed to information, which is something completely different) and the right ways to respect it need to include some relatively minimal security measures. I am not referring to the draconian (misguided, unworkable, and trivially easy to bypass) copy-protection schemes that Hollywood has applied to DVDs, as I personally do not disagree with Shropshire's apparent belief that those schemes are both wrongful and ultimately worthless. Instead, I am referring to restricting the forum for casual exchange of stolen property--shutting down fencing operations, if you will.
     (3) Assumption: A lawsuit that attempts to force those who lobbied for the DMCA to comply with it is merely a revenge action (Shropshire, note 24 and accompanying text).
     Not much needs to be said here. The readers of Locus are smart enough to see this problem. One might easily argue exactly the opposite: that forcing the Corporate Interests to follow their own rules is not vengeance, but poetic justice. Beyond this, Shropshire's piece makes a number of factual assumptions and assertions inconsistent with the actual history of this matter.
     (4) Assumption: That Harlan could choose to also provide paid content of his own, using some kind of micropayment system, somehow is inconsistent with his lawsuit (Shropshire, notes 25-28 and accompanying text).
     Initially, one must note that Shropshire's last section starts off revealing some remarkably poor research. The merest glance at Fictionwise would show several of Ellison's works available there, in properly edited editions and properly formatted versions for just about every reasonable platform for reading electronic texts. Shropshire's criticism of Ellison's purported refusal to make his content available to netizens falls flat on its face.
     More interestingly, though, this section contradicts Shropshire's implication that an imperfect control system--the peer-to-peer alternatives, FTP, etc.--that make Ellison's lawsuit meaningless because the lawsuit could not completely shut down piracy justifies not attempting to deal with the system. Micropayment systems are, to say the least, less than mature; over-the-Internet purchasing systems require a heavy investment in professional staff, equipment, and security systems. Knowing what I know of computer security, or rather the illusion thereof, I can understand perfectly why the content creator would not wish to expend his time, money, and energy upon ensuring the security of the business end of the transactions. It would only take a single hacker penetrating a micropayment system to obtain and misuse the financial data in it to seriously damage such an operation. The stakes when protecting financial information are different from those when protecting entertainment. Ellison has made a business decision to concentrate elsewhere.
     Shropshire's argument is akin to criticizing a filmmaker for not wanting his films put on TV, with its different form factor, inferior sound, and inferior color reproduction. Sometimes this is an apt criticism; sometimes it is not. But Ellison's lack of apparent interest in following a business model such as that Shropshire proposes has nothing to do with Ellison's lawsuit.
     * * *
     Is entertainment merely another form of information, and therefore to be made freely available to everyone by anyone clever enough to find a way to distribute it, regardless of the wishes of the creator? Richard Stallman famously asserts that "information wants to be free." 1 One reaches Shropshire's result only by equating entertainment with raw facts. That you are reading this response in the first place indicates that, at some level at least, such a position is not completely sound--because this entire forum is dedicated to a type of entertainment based upon extrapolating beyond the factual.
     Ellison's lawsuit is about who chooses to have works distributed, and the consequences for violating the copyright holder's choice. It is not a fundamental attack on the Internet, or on freedom of expression, or on freedom of communication. It need not be the same choice that others might make. There is a large difference between a right and a privilege; unfortunately, the argument made here by Shropshire and elsewhere by countless others conflates the two.
     Shropshire need not agree with Ellison's lawsuit. However, one might wish that he would do so on logically sound and valid grounds that are consistent with the underlying facts in the matter.

C.E. Petit, Esq.
5 May 2002

1. Although this is not the precise formulation Stallman himself uses, it is the formulation that is tied to his name. Stallman's position has actually moved closer to this formulation since he published "The Right to Read" a number of years ago. Sadly, the formulation assumes that content creators and compilers (whether of entertainment or raw data) can make a lucrative enough living otherwise--such as by being a tenured faculty member--that they need not rely upon income from that filthy intellectual property stuff. The Constitution (Art. I, 8, cl. 8) explicitly holds otherwise, and controls the system back here in the real world.

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