texto : Copying and Sharing in Self Defense

The right to enjoy

Article 27. (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

– Universal Declaration of Human Rights, December 10, 1948

If you're walking on the street and you find a wallet on the ground, you'll probably pick it up and try to locate its owner to return it. If, while searching for some document that identifies the owner, you find a piece of paper with a poem in it, reading it is all right. You don't have to ask for permission (license) from the author of the poem, or from the owner of the wallet: you're entitled to read it and enjoy it. As long as you put it back in place, you won't have taken anything from anyone. On the other hand, taking the money from the wallet wouldn't be right, for it would deprive its legitimate owner of it. Publishing industries attempt to confuse us hiding this crucial difference.

If you walk a bit further and hear your neighbor sing a song in the shower, that's all right. You don't have to ask for permission (license) from the composer of the song, or from its performer: you're entitled to listen to it and enjoy it, and even memorize it and sing it for yourself and your friends at a later time.

You hear the bells from the church and you know that at about that time your VCR will be powering off, after taping your favorite broadcast TV show, so you can watch it as you get back home from work. You don't have to ask for permission (license) from the director, the studio or the TV broadcaster: you're entitled to record it and watch it at a later time, along with your family and friends.

You get home, you power on your portable computer and load into its drive a DVD you rented. You don't have to ask for permission (license) from the director, the studio, the DVD publisher or the rental shop to watch the movie, and this involves such tasks as copying the movie from the DVD media to the computer memory, unscrambling the regional encoding, decompressing the video and the audio, copying the video to the digital display memory and converting it to pixel patterns on the screen and then to light waves, copying the audio to the digital audio amplifier and converting it to mechanical vibrations and then sound waves, and finally converting this all into neural impulses and into temporary or permanent memories. Since you're entitled to watch the movie, you can copy, convert, memorize and replay the whole or the parts, without depending on anyone's permission.

The right to enjoy an artistic work you've had access to is a practical issue. It would be ridiculous to have to ask for permission before reading a piece of paper, and then, once you get it, find out that the permission was spelled out right there. It would be ridiculous to have to somehow refrain from listening to a song that's playing around you. It would be ridiculous to be deprived of a TV show just because it's broadcast to all at an inconvenient time. It would be insane to have to ask for permission for each of the conversion and copying steps involved in enjoying an artistic work. It would be insane to have to ask for permission to retain the work in your memory, or to force yourself to forget it in case you fail to locate someone who could and would grant it.

Fortunately, that's not the way it is! There's nothing wrong in any of these things, and no law stops you from doing them. There shouldn't be any: it would be unjust, and it would violate fundamental human rights. You have a right to enjoy works of art you have access to, and to take part in the cultural life in your society. No law should ever take that right away from you.

The right to share

Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

– Universal Declaration of Human Rights, December 10, 1948

Say you have a very large collection of books, and you're disappointed that few people get to read them. You decide to donate them to a public library. You don't have to ask anyone for permission to make the donation, and the library doesn't have to ask anyone for permission to lend the books to whomever might be interested in them.

If publishing industries had it their way, you'd have to lock your CD, tape, DVD, and book collections in safes whenever you had guests, lest they should borrow any of them. Instead, you're not only entitled to display them: you can also play them for your visitors, and let them borrow your copies and listen to them, watch them or read them wherever and whenever they like.

Laws that prohibited receiving and imparting information and ideas would violate fundamental human rights.

The right to preserve

Article 28. Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

– Universal Declaration of Human Rights, December 10, 1948

When you buy CDs, DVDs, books, etc, what you're buying is access to the work, rather than its supporting medium or a supposed license for enjoying it: you don't need any license for that. In fact, if the medium gets damaged, any decent publisher will replace the broken copy of the work, for no more than a nominal fee that covers media, packaging and shipping costs, so that you can retain the access you'd paid for.

If the publisher goes bankrupt or runs out of copies, you don't have to let your only copy of the work degrade till you lose access. If the publisher is not decent, it might actually plan for the copies to degrade, to sell access repeatedly until it starts denying access to the work, indefinitely, to all of society. Such a plan is not supposed to work. In fact, several jurisdictions explicitly permit, beyond any doubt, backup copies and copies for personal use, in spite of any exclusive copying rights of an artistic work society might have granted to anyone else.

This explicit permission, albeit welcome, is not strictly necessary. It's all right to remember works one had access to. However, few have perfect or photographic memory, so we're taught to use auxiliary memory to record things that matter: to take notes of classes, meetings and findings, to take pictures and record movies of important events in our lives, and even to make backups of information we store in primary and auxiliary memory.

A backup copy of a work is nothing but a memory extension, so that you can more accurately and better remember the work, to recall it and enjoy it at a later time.

No laws can or should stop you from keeping memories and enjoying them, for without memory, the rights to enjoy and to share cannot be fully realized.

The right to convert

Along the same lines, if your old LPs and cassette tapes are degrading, and you worry about finding needles, magnets or motors to fix your players in case they break, you can find comfort in that you are entitled to preserve your access to the works, even if this requires converting them to another form and storing them in other pieces of auxiliary memory.

Say, you can play them into a computer and record them onto electronic, magnetic, optical or any other kind of memory, to time-shift into the future your remaining ability to play the works as many times as you might want.

You can further convert the works to different encoding formats, if that's what it takes for you to be able to enjoy them, while driving your car, walking on the street or sitting at a bus or train with a portable music or video player, or another kind of computer.

Remember, there isn't, and there shouldn't be, any law that stops you from copying and converting a work as accessory steps in the process of enjoying it, or from backing up the results of these accessory steps for future use. You are not supposed to be bound by the limitations of the medium, format or players selected by the party who granted you access to a work: once you gain access to it, you're entitled to enjoy it however you like.

The combined right to share and preserve

Say a friend wants to borrow a DVD from you, but her dog is famous for its taste for DVDs. You might consider declining your friend's request, but why should you? You might as well just make a backup copy of the DVD, to preserve your access to the work, and then let your friend take home the "original" copy, or the backup copy you made.

Your friend, in turn, might fail to watch the movie before the time she agreed to return it, or want to watch it a few more times. To preserve her access, extending her memory and time-shifting her ability to enjoy the work as many times as she liked, she could return your copy after making a backup copy of her own. Or call you to ask whether she could keep the copy. She may even refrain from calling, if she knows you will just call her if you ever need it.

In fact, you might have an agreement with her, so you'll keep backups for each other. Even over the Internet! Although each of you maintains other backups at home, that won't protect one's files should one's house burn down, for example.

So, she reserves part of her computer's disk space for you to hold your files, and you reserve part of yours for her. You trust each other enough to not be worried about privacy issues, but you also know that you're backing up each others' picture, song and movie collections, and that's as fine as if the pictures, songs and movies were backed up onto off-site CDs, DVDs, tapes, whatever.

And then, since you're not required to police access to works (in fact, we saw you're entitled to share it with your friends), you're not required to encrypt the data or have her agree never to look at those files.

Your arrangement might even include an understanding that you agree that each one can access the pictures, songs and movies in the backups maintained for the other. No further permission is required.

The rights to download and upload files

Say you're going on a trip, taking in your portable computer some papers you want to read. Concerned about theft and loss, you post the files on your web site as well, so that you can get to them on any cybercafe. You don't have to ask anyone for permission to do this: you're just preserving your access to them.

These files are for personal use, so at first you don't tell anyone about the URLs. However, during the trip, you get an e-mail from a friend, and she asks about a paper you'd mentioned to her. It's one of the papers you'd uploaded to your web site, so you send her the URL. You're entitled to share works you have access to with your friends. The fact that you can't meet them personally to hand them copies in physical media shouldn't get in the way. They, in turn, are entitled to enjoy them and preserve them once you grant them access. Neither of you has to ask anyone for permission.

Your friend passes on the URL to another friend, who then posts it to a private mailing list, and the message later on is forwarded to a public mailing list. People from all over start downloading the file from your web site. That's fine, you're entitled to share the work with every one of them. Even if you weren't, you're not required to police access to the site any more than you're required to hide your DVD collection when a friend visits you. Similarly, those who download it aren't required to police you on whether you have any permission you might need in order to grant them access to the work, any more than they'd have to check whether you're entitled to lend them a DVD.

The right to P2Preserve

Your cross-backup arrangement works so well that, when you read about a peer-to-peer distributed backup system, you jump into it. As before, each peer offers a portion of their hard disks to host others' backups, and in turn has portions of their own disks backed up on the network.

One major advantage is that the backups are replicated among various participants, so that even if a few drop off the network, the backup files remain available. The system is also clever enough to tell when multiple users want to back up the same file, avoiding wastage.

Of course you keep your personal files encrypted on such a backup system, for you don't trust everyone out there as much as you trust your friend. But for files you'd normally share with friends, why would you prevent wastage reduction?

One day you get an e-mail from another peer in the network, asking whether you'd mind if she kept a copy of a song she found out she was backing up for you. What a silly question! She was already keeping that copy, and she had evidently already gained access to the song, so it's obvious she can keep it. But she thought asking couldn't hurt. It didn't: it gave rise to a good friendship.

The right to P2Participate

One day you accidentally remove a file from your computer. You ask the network for a backup, and you find it's restored so quickly you can hardly believe it! By chance, another peer had just backed up a copy of that file in the network, and it happened to be transferred to your computer shortly before you requested the restore.

Turns out this person seems to like the same songs you do. You recognize most of them, but there are a few you hadn't heard before, and they're just the sort of thing you love! So you keep a copy of the songs that this new friend shared with you. You also send him a thank-you note with some musical tips, and you become close friends.

Nowadays, every time you purchase a CD or a DVD you like, you preserve it in the folder backed up by P2P. Nothing stops you from using the network as memory to preserve your access to the works, or from permitting your friends to gain access to them. And every now and then you get e-mail from a new friend thanking you for that.

One interesting aspect of this network is that, when a peer drops off, the network will make up for the loss creating more replicas of the files that were in the peer. You don't have to ask anyone for permission to transfer around the files you host for others, any more than an ISP needs to ask anyone for permission to transfer the files you requested from third parties, or to cache them.

When you join a P2P network just to download a file, the situation is slightly different, for you have a much better notion of what you're downloading and transmitting. However, as we saw before, it's all right to download an artistic work and to share access to it with a friend. If someone who's entitled to share access with you and others asks for your help in extending it to the others, why not help?

But what about the poor publishing industry?

Article 27. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

– Universal Declaration of Human Rights, December 10, 1948

Under the false pretense of helping authors, whom the inhumane publishing industry exploits as much as it does us, it will probably keep on trying to limit what people can do, by technical and legal means, inventing technological barriers to deny fundamental rights, threatening to sue and to throw people in jail for exercising them, and hiring legislators to pass laws that take further rights away from us.

But why should society accept laws that undermine fundamental human rights, as well as such bases of society as friendship and sharing? Sharing with friends yields no material interest, therefore not even an author could invoke the human right of protection of material interests to oppose it.

Fundamental rights and self defense

Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

– Universal Declaration of Human Rights, December 10, 1948

When some provision of law or proposed bills appear to conflict with fundamental rights, we're entitled to and supposed to stand up for our rights, and oppose laws that deny them or cast doubt on them.

Since these are fundamental rights, they shouldn't be outlawed. Even if there are criminal provisions that appear to cover them, in a state of law the regular enjoyment of civil rights can't be regarded as a crime.

As for private means to attack fundamental rights, that the industry resorts to every now and again to impose restrictions that violate human rights, deflecting the attack to enjoy the civil rights amounts to acting in self defense, which, in a state of law, can't be regarded as a crime either.

Written for the proceedings of the First Congresso Estadual de Software Livre do do Ceará, CESoL-CE, held in Fortaleza, Ceará, Brazil, from August 18-23, 2008.

Copyright 2008 Alexandre Oliva
Copyright 2008 FSFLA

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