Reasons Why Fair Use is Important to Geek Linux Users

by Ruben I Safir

In the summer of 1991, in a story now known to almost anyone familiar with the computing industry, a young Linus Torvalds was finishing up the prototype of his revolutionary new operating system kernel in Helsinki, Finland. In what is very much an American-like tale, the young Mr. Torvalds, with little more than his talent, his determination, and a vision, began a quest that fateful summer which would succeed beyond the anyone's wildest expectations. With the help of his friends on the internet, Linus let loose upon the world a software design which would build into an industry, and his vision has been responsible for the generation of thousands of jobs world-wide, feeding families and empowering individuals to produce sustaining wealth through freedom of the human spirit. Disney could not write fables as perfect as this.

However, the benefactors and leaders of Linus's vision, need to come to grips with the essential truth that the conditions upon which Helsinki Miracle was dependent are threatened today. If any of these conditions had not existed the development of Linux would not have happened. The three essential conditions did exist in the summer of 1991: political freedom, technological maturity, and economic opportunity. In 1991, all three of these things nicely converged to produce Linus and Linux.

Before 1991, independent breakthroughs such as Linux could not have taken place in the voluntary atmosphere of free software because the networking technology needed for worldwide remote cooperation simply hadn't been matured enough to facilitate the social process that Linux embodies. The community couldn't form because the information infrastructure had not yet existed for it to do so. Once this technological barrier was overcome, a technologically based hackers community was inevitable.

The second condition that existed in 1991 was that hardware in the personal computing space was largely compliant with opens standards. Many regard this as an accident, but when we examine the development of the PC computer, especially the governments insistence of a competitive industry in PC hardware without monopoly, the standardization was a natural outcome of the political expectations of the day. Compaq's cleanroom reverse engineering of the IBM PC was legally protected by law. This did not have to be the case. Compaq's reverse engineering could have been viewed as a patent or copyright infringement. Had it been so, it is unlikely that Linus would have had enough information about the specifics of PC hardware to create Linux.

Nor would he have the right to access the needed device drivers to make the affair worth pursuing. In addition, even if he had gotten past this barrier, use of closed protocols could have been viewed as a violation of the copyrighted material and exploitation of trade secrets. The only thing that prevented this obstruction of Linux, aside from government anti-trust action, was 'Fair Use'. Fair Use assured the political freedom necessary for Linus to produce Linux.

The final thing that made Linux possible was a proper economic environment to stimulate innovation. That Linus was able to afford the necessary education, which gave him the background to be able to investigate the construction of an operating system, is often overlooked. Linus was not only a well fed graduate student when he created Linux, he was also able to afford a PC to hack on, and money for books, and money for information on computer sciences.

***He was in an environment that could afford to freely offer copyrighted information.***

He was able to access others' works in his production of the kernel. Journals and Libraries promoted his efforts both through publication of the resultant works and through a steady feed of reliable information. The economic conditions that Linus experienced were designed to encourage Linus to exploit his potential as a world citizen and in so doing, added to our own heritage.

The title of this essay is "Ten Reason Why Fair Use is Important to Geek Linux Users". Nothing has been said that appears to address the title. What needs to be understood is that Linus, in today's environment, would not be able to produce Linux. The Linuses are facing an escalating hostility to future Linuses. Free enterprise in the computing field today is coming to an end. We are destroying the right to innovate.

When the internet erupted onto the public consciousness, the potential for acquiring information became immediately apparent to any of its users. Internet access has changed the way people today think about acquiring information. Back in the old days, in the dark ages of the middle 1980's, we toiled in a limited world, limited to our block, our families, our town and our friends. Reliable information was scarce and expensive. If I was discussing with someone the historical background behind the painting of the Mona Lisa, my options were very limited. I could go down to the local library and look up the Mona Lisa in the card catalog, hoping to find a book on the topic. Failing that, I was stuck. Specialized libraries on Art History were not available, and institutions lucky enough to have such a detailed and specialized library limited public access. Journals on specialized material were expensive when they existed, or unarchived or unavailable. More important, finding a community of people with expertise in the area of interest required nothing sort of a lifetime academic membership in an reputable institution of higher learning.

The internet has turned all that on it's ear for two reasons: the cost of publication on the internet is very low and the freedom to share ideas is protected. Previously, when someone had an expertise on a topic, or a passion for a topic, that person would have years of research and generalized knowledge on the topic locked up in his person, with little or no way to make the information available to an interested public. This individuals full potential is bottled up.

First he needs to generate a manuscript in the hopes that the manuscript fills a particular need in the marketplace of information. It gets submitted to a gatekeeper who controls the flow of information to the public. This gatekeeper is either a publisher, or a program manager. Censorship of the work is then applied to the work for the benefit of the publisher. Finally, if everything goes right, the censored information is made available to the public unidirectionally. Feedback is neither required or desired. The closest we get to peer review or public conversation is the censored Letter to the Editor section of the press and the heavily censored talk radio phenomena which started in the 1970's.

Obviously the process is fraught with abuse and efforts to correct the problem in the traditional media have been unsuccessful in the face of a demoralizing assault by private economic interests on the public space. Spin doctors belittle the use of public set asides in the media. Most of the efforts are being driven from public view. Public Access television, editorial broadcasts, and even guarantees of children's television programming, and balanced political air time have been removed from our publicly owned broadcasting channels by the private interests which have been entrusted with them.

Over time, failure of the public to protect the public domain, in combination with a quirk in our available technology, has eroded our participatory civic lives. The foundations of Democracy are dissolving. Until now, there have been two means of mass communication: the Telephone and Broadcasting. Broadcasting has always required large capitalization by centralized organizations to successfully publish. Examples of this are Movie producers which need production budgets and distribution channels, Book Publishers which need print houses, advertizing budgets and book outlets, and Television Broadcasters who need radio equipment and studio facilities. All these technological factors prevented individuals from participating in publication.

The telephone as a form of mass media has been more personal than Radio, Television and Book Publishing. The telephone connects two individuals such that each party is a receiver and a publisher of information. This wildly successful invention encourages people to express themselves to others. For example, "telephoneitis" is a common disease that inflicts young people between the ages of 9 and 17. Its onset is a painful experience every parent comes to dread. And it is closely related to the new malady "chatroom addictionitis" which is sweeping bedrooms and study halls across America.

Before the internet the 20th Century was a century of decreasing literacy. We were increasingly reliant on receiving information through the mass media, and decreasingly reliant on the written word for personal communication, our generation is just not as literate as that of our grandparents.

The internet changed this and today we are experiencing the greatest increase in general literacy in a hundred years.

The internet is a convergence of traditional mass media and the telephone Who among us today is not a publisher? Today our appetite for information is enormous and our quest to provide information has reached an unprecedented level. The growth of the internet has turned the global village into the global street corner. Today, everyone lives on the same block. We all share the same stoop. And we have discovered that we all have a need to be heard and to share. The ability to cooperate, share and trust to the degree humans do is without parallel elsewhere in nature. Co-operation and communication are a genetically tattooed traits that have enabled and defined us as a species. It is what make us human.

But we have reached a critical stage in the history of Mankind. A new dawn for mankind is on the horizon. And whether our new technology will continue to be a tool in enabling us or become a tool to shackle us is very much in question. GNU/Linux users and hackers are at the very core of the debates and choices we will make for our future. Economic interests that are built around unidirectional mass media, which have abused the public trust in the past, perceive the internet as a threat. They see that the new technology is capable of ending their monopoly on publishing information.

The publishing industry is willing its ability to influence lawmakers to strip all privacy and every aspect of the control of information from the public. And it wants to use technology to do it. Companies are demanding and receiving the privatization of human civilization itself by attempting to gain complete control of the new venue of human culture: the modern computer. In doing so, they seek to make it a criminal act to communicate about computer infrastructure, or to explore the foundations of the technology that we use each day to interface with others. Future Linuses will have to contend with laws designed to prevent the free exchange of information. Exploration and reverse engineering is today a felony.

Many of us in the computing field are well aware of the issues involved. We have vented our frustration on slashdot and other venues at the growing threat to the free flow of information. When the group 2600 was taken to trial for the publication of the DeCSS source code in New York in the Summer of 2000, many hackers showed up to protest the infringement of fair use and free speech by the Digital Millennium

Copyright Act of 1998. But the community has not yet been able to organize effectively, and it needs to be effective politically to protect itself and our free society.

Even worse, there is a large segment of the GNU/Linux User community that considers discussion of copyright and fair use outside the scope of the discussion of GNU/Linux. When the topic is opened for discussion on various Linux User Group mailing lists, some list members complain that the issue is noise. Even the much exalted Silicon Valley Linux Users Group suffers from this. NYLUG, the New York Linux Users Group, and LXNY, her sister free software group, are active in this area, and it reflects on their mailing lists, but even they suffer from this same malady.

So, we must enumerate the reasons that political action on Fair Use issues is essential. All GNU/Linux users need to understand that the freedom they experience using Free Software - whether it be software like GNU/Linux, or Software of their own design is something the modern mass media oligopoly is trying to extinguish with a frightening lack of regard for our constitutional rights.

Here are the 10 reasons every Linux User must join in political action to protect the right to develop and use free software:

1: Computer Engineers and Programmers must have the freedom to practice their trades. This right is being jeopardized as access to software and hardware is diminishing. Software intelligence systems are on the drawing boards designed to circumscribe and to diminish the information and access needed to touch or interact with software and hardware systems.

[http://www.theregister.co.uk/content/2/15684.html] [http://www2.mrbrklyn.com/solutions200.html#two]

This is as if we were to say that a Carpenter was allowed to use a hammer only with size 6 IBM brand nails, but was not allowed to use his own hammer on IBM size 6 nails, even if he built his hammer himself.

2: Computer Programmers must have the right to freely use their property as they see fit. This is the basic question of who owns your computer, software and media: you or the software publishers and media companies? You do, obviously. If someone steals your computer, Time Warner will not call to police to report the crime because you had an mp3 of a performance they owned the copyright for, nor would IBM press charges against the thief because their hard drives were installed on your system. That you have an mp3 of a copyrighted performance of a song or a certain brand of hardware does not, and should not, give the copyright holder or hardware manufacturer ownership of your computer. But IBM and AOL/Time Warner want exactly that. They want the legal right to prevent you from reading the information stored on your hard drive and prevent your access to its data. If they get all they want from congress, they will soon be able to completely prevent the installation of any software on the hard drive, including the OS, without complete prior approval of the manufacturer of the system. There are already systems in place that force you to buy software that you don't want. In the future, it will be illegal to even remove that software from your system to install different software, and the software will turn itself off if a subscription-like fee isn't paid. Essentially, they want to own and control your computer after you buy it.

3: Computer Programmers must have the ability to innovate new software design. Innovation is never unrelated to previous works. Isaac Newton said it well, "If I've seen so far, it is because I have stood on the shoulders of giants". Newton was clearly one of the most original and creative thinkers in world history, but this might have been Newton's greatest observation. Even great thinkers like Newton could not have made innovative contributions to humanity without being derivative (no pun intended). The ability to improve existing software through study and experimentation is the fuel of software innovation. For programmers to innovate, they must must have fair use access to derive new works from previously published works.

4: Computer Programmers and Users must have free accesses to their hardware. Imagine the following Star Trek episode. The Starship Enterprise is under attack from an unknown and relentless alien spaceship. They manage to defeat the shielding and are boarding the ship. As all looks hopeless, the Captain barks out orders and commands the ships computer, "Computer lock out all command functions - Pickard 185Alpha". The computer responds, "Failure to comply. Copyrighted material discovered on your IBM hard drives. You are not permitted to block access to this area of your computer. You are not the copyright holder. This attempt to block access to copyrighted material by the copyright holder is not permitted. This incident is being reported to IBM and the content owners. User interface to communications is being locked out and IBM is being notified through subspace. Please see current licensing agreement for further information" The damage of having unregulated, private control of such a vital communications tool is so obvious that it amazes me that anyone in a responsible government position can even consider it. Yet congress is seriously considering legislation that would prevent you, and even high-end computer experts from protecting yourselves against eavesdropping and other abuses.

5: Computer users must have uninhibited access to media they own. Linux users are hurt in two ways when they don't have uninhibited access to their media: First, if the media they own is inhibited in it's use, then they can not develop needed software for systems they create. Second, restricted access locks them into purchasing software that they don't need or want in order to be able to use other software they do need. For an example of the second problem, let us look at the "vital books project" at the NYU College of Dentistry. A Linux User who is a Dental Student at NYU College of Dentistry will find that books are no longer available for his education in dentistry; instead, all dental textbooks are engraved on an encrypted dvd viewable only on proprietary hardware and software. He MUST buy these proprietary items for his courses and he is forced to both purchase more than he needs or wants and relinquish his right sell the materials if he no longer wants them. This is not an accident, but a stated goal of the project. (see http://www.vitalviewer.com/Harcourt.html below) Our Linux user must by an entire second system, at considerable added expense, just to participate in his own, already very expensive education. This is a break down of the principles of personal property and of fair use. It prevents the use of anything other than officially approved computers.

6: Computer users must have the right to participate in the economy. Media outlets have been fortunate until recently. They have had the ability to push material on the public in a one way direction. Data goes from producer to consumer. Computers break that very profitable model for distributors of mass media. The public, in the old model, were consumer widgets. No thought was given to consumers as producers of media (or of anything else for that matter). Computers have unshackled people from the chains that forced them to endure the intrusive push of pre-censored media and advertizing. Experienced computer users quickly exchanged that prior passive role for a model of two-way interaction. No longer is it a necessary by-product of the economy that we suffer disenfranchised pockets of communities which interact with the large community only as consumers. GNU/Linux gives its users the opportunity to be producers in our economy and to become wealth builders. It allows users to produce software, images, networks, advertizement, animation, recordings, video, and more, without having to face cartel efforts to pigeon hole them into a consumers role, or crush their efforts with forced upgrades, unchecked license fees, and limited access to tools. The ability of this growing subset of the Linux user community to join in our economy as producers is significant. It means people can hurdle the restrictions to fair use and, thus, gain full access to the cultural artifacts stored on their computers. Their consciousness no longer need be numbed, as it has been for decades, by the current pop culture with which they have been bombarded. But a collision between those who would have full access to their cultural artitacts and those of would seek to limit that access is inevitable. Those who seek to control their own use and enjoyment of the information, science and the arts, won't find that control. Under the existing DMCA, they'll find felony charges instead. DJ's using Linux to create music mixes will be felons. Programmers altering sound and images - or creating the tools to do so - will, likewise, be criminals. These groups, and many others, are crippled without access to materials for use in derivative works.

7: Computer Engineers and Programers must have educational freedom. The future of education looks bleak at the moment. And the future of computer engineering and programming looks bleakest. Unlike other students, who have general academic freedom, computer science students are faced with the prospect of having all knowledge on the topic of computer sciences sealed within encrypted DVD's accessible only on a pay as you go basis. In addition, all the materials and platforms they need to for legitamite research and discovery will be restricted. Today's legal and technical infrastructure is destroying our capability to produce tomorrow discoveries. It's even possible that in the near future there won't be enough trained people to understand even today's technology, or to access materials and information blocked by congresses' new found love affair with access control. Capable engineers and cryptographers don't grow on trees. They need freedom to be nourished developed.

8: Computer users must have a freedom of choice of software and hardware products. Computer users have different needs and abilities. Free choice between computer systems and client programs is essential. It is the only way to assure that it will be possible for users to discover the tools that will be best for them to use in applying solutions to their problems. Common standards for media formats are essential. Freedom to choose between products is threatened by hardware and software lockouts which prevent the free movement of information from platform to platform. These lockouts are designed to prevent fair use of copyrighted materials in the digital age. They are designed to prevent use of "unsanctioned" systems, programs and hardware. They are designed not only to control what you buy, but to control how you use what you buy after you buy it. They are designed to eliminate your ability to choose. To choose what programs you run, how you listen to music, how you watch video. We are facing a future where if you want to read a newspaper, you'll be required to buy special, regulated equipment to do it. And if you try to read a news story without reading each and every ad, the equipment will shut down.

9: Computer programers must have the freedom to innovate. Microsoft has been claiming this for months. Individual programers have needed this for years. Fair Use is the only thing protecting programers from being locked out of their systems by overreaching corporations and private concerns. Fair Use provides the constitutional guarantee that users and programmers have full usage of their legally purchased machines and software. Innovation demands uses of systems in ways that might not be "approved of" (or thought of) by manufacturers. Leaving the control of permissions the equivalent of Gallilo asking the Church for permission to point his telescope at Jupiter before being permitted to legally doing so. Like your computer? Like to use Linux? Like to write new interfaces for your hand held device? Your right to do so is called....Fair Use..

10: Computer Users Must have the right to "reverse engineer". This is the ultimate test of fair use; the ability to "reverse engineer" any system is fundamental to all of engineering and product development. And it is implicit that one doesn't need permission from manufacturer to do it. If you buy it, you own it, and you are free to take it apart and look at it. This isn't stealing. You can't build and sell something just like it. That IS a right the original manufacturer has. But he can't prevent you from seeing how it is put together. He can make it difficult, if he wants to, but he can't stop you from looking. When systems are wrapped in encrypted firmware that limits access, then there is no chance of reverse engineering. And, that, in itself isn't a problem. The problem is that these companies are trying to get the congress to REQUIRE that ALL devices have such encrypted firmware and to make it a crime to have a device that doesn't. Even the current DMCA, as restrictive as it is, isn't that restrictive. There are provisions in the 1998 DMCA that allow for reverse engineering, but there are no means to do it under that law that are both legal and practical. Now, these companies, threatened by their own lack of innovation, want to restrict access even further. Access control has nothing to do with copyright or patents. No copyright law or patent law was ever intended to control the use of a product after purchase.

Vital Books Qoute: "The agreement between Harcourt and VSTi will allow Vital Source to bundle digital versions of Harcourt's Mosby, W. B. Saunders, and Churchill Livingstone dental school textbooks along with each participating dental school's internal curriculum course manuals on a single DVD. Using the VSTi VitalviewerTM XML browser, students and faculty will be able to quickly and easily access content across all four years of their curriculum enabling them to find specific subject matter in a highly structured, context-sensitive search environment. In addition to enhancing the student/faculty experience with reference and resource aids, the VSTi service creates a copyright compliant environment on campus, giving Harcourt Health Sciences the ability to maximize student and faculty use of their products in a cost-effective manner."