Re: Producer Give-Aways Vs. Consumer Rip-Offs

From: Peter Suber <peters_at_EARLHAM.EDU>
Date: Thu, 16 Aug 2001 14:02:45 -0400

At 05:42 PM 8/16/2001 +0100, Stevan Harnad wrote:
>Dear Peter,
>Your coverage of digital developments in Free Online Scholarship
>through your newsletter and Forum is remarkable and admirable.
>I just wanted to suggest that it might not be doing the cause of
>freeing digital access the most good to make no explicit distinction
>between consumer rip-offs of non-give-away products and producer
>give-aways of give-away products.
>It is a fact that there are some digital products (e.g., music
>recordings) that their producers definitely do NOT want to give away.
>So attempts to get them anyway, whether they are bending technology or
>bending the law or both are in fact going against the wishes of their
>That is an ideological/ethical issue on which you need not take a stand
>if you do not wish to, but it needs to be classified as being what it
>is: consumer theft of digital products that are not producer
>In stark contrast to this are those digital products (e.g. refereed
>research papers) that their producers (authors) definitely DO want to
>give away. (The publisher's "value-added" component to the product is
>another matter, and should perhaps be treated as a hybrid.)
>So throwing together napster-style piracy with eprint-self-archiving
>simply risks making more people (most of whom are in any case
>profoundly confused about ALL digital developments) think that there is
>something immoral or illegal about the latter.

      Stevan: Thanks for writing. I accept the distinction between
give-away literature and non-give-away literature, and made a similar point
myself in my June 8 issue (fifth story):

If you're also saying that the distinction needs to be repeated in stories
where it is relevant, and not simply understood and accepted, I can accept
that as well.
      I agree that one should not conflate "napster-style piracy with
eprint-self-archiving", but I can't agree that I've done this. If you
could point out where, that would help me respond.
      Perhaps you're objecting to my support for Felten, Sklyarov,
Touretzky, and 2600 Magazine (which published the DeCSS source code). On
one reading these are all DMCA violators and thieves of copyrighted
intellectual property. My support is not based on a blanket objection to
copyright or intellectual property, or a belief that all information
(including copyrighted and priced information) should be free. It's based
on a belief that readers of intellectual property have fair-use rights, and
that purchasers of intellectual property should be able to make back-ups
and take their purchased files with them when they upgrade
computers. Unfortunately, some providers have set things up so that users
can enjoy these rights only if they bypass copy-protection which, after
DMCA, requires them to break the law. My support for Felten and Touretzky
is also based on their academic freedom to research the topics of their
choice, including encryption, and share their results in public. (If you
didn't object to my support for these folks, sorry for the digression.)
      Let me put my position positively, not negatively. The scholarship
that should be free and online is that which its authors want to be free
and online. Since scholarly authors are not paid for journal articles
anyway, they lose nothing by making their work available for free, and they
gain readers (and impact, as you've argued). Book authors, and certainly
musicians, can hope for royalties from their work. More power to them. I
hope that authors of scholarly books will prefer wide readership and impact
to royalties (which are improbable for most anyway); but this is their
choice. Scholarship is more useful online than in print; and if online,
then free is better than priced, and affordable is better than
expensive. When authors and publishers of online scholarship choose to
limit readership in exchange for revenue, I hope they can find a way to
respect readers' fair-use, back-up, and migration rights, and I hope their
price is affordable; but so far, this combination is very rare. Note that
my list of readers' rights is limited; I don't say they have a right to
read or possess priced works without paying. By the same token, the
legitimate functions of copy protection are also limited, and I wish
publishers would back off from absolute copy protection to forms that only
protect their legitimate interests and are otherwise compatible with
readers' rights. This is complicated and controversial, but the good news
is that free online scholarship makes it all unnecessary. For works that
are fully free and online, we don't have to worry about fair use or copy
      For a longer statement of my positive position, see

>I would accordingly suggest formally subdividing your coverage into
>those developments that concern non-give-aways only, give-aways only,
>and perhaps a hybrid section for developments that may impinge on both.

      I've thought of this. I'd call the categories "free online
scholarship" and "half-measures" (or "second-best approximations" or
something along these lines). The only reason I haven't adopted this
format is that *by far* the bulk of the news is about half-measures (like
putting journals online but not for free) or initiatives that serve both
categories (like metadata standards, preservation methods, and digitization
programs). I'll keep thinking about this.

>(For what it's worth, if I were myself covering Free Online
>Scholarship, I would only want to cover those aspects in which the
>"Free" is voluntary on the part of the Scholar, rather than
>forced on him by the user...)

      As I said, I want to cover Felten, Sklyarov, Touretzky, and 2600; but
the reason is not that I approve of involuntary pricelessness, or theft
from authors and publishers, but that I disapprove of denying the rights of
readers and purchasers.
      If you take a different view of Felten and company, and the DMCA,
this would make a good discussion. But if you wondered whether I advocate
freeing the literature of those who want it unfree, I hope this
clarification answers your question.


Peter Suber, Professor of Philosophy
Earlham College, Richmond, Indiana, 47374

Editor, The Free Online Scholarship Newsletter
Received on Wed Jan 03 2001 - 19:17:43 GMT

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