February 5, 2003

Language is a battlefield

Category: Research — Biella @ 7:28 pm

I read mailing lists a lot for research and to tell you the truth, I am not too fond of them even though from time to time there is a gem of a thread with some insightful statements that go beyond the “OPINION ORGY” that so often characterizes mailing list chatter. I recently stumbled across such a jewel on the Debian legal list.

The intention of the original post was to urge people to use caution and deliberation when using certain words and terms when talking about copyright issues, especially related to infringement. It states:

Some people might feel that punishing the
infringement of a legal fiction more harshly than we punish violations
of universally accepted human rights reflects a priority inversion in
the legal system. Some people also feel that the very large media
corporations that now control most published, copyrighted works in
existence have ample resources to pursue tort claims against
infringer. If you share either of these perspectives, then you might
also wish to help restore sanity to modern discussions of intellectual
property law by not referring to allegedly infringing materials or
actions as “illegal”. Instead, simply call them “infringing”. Better
still, don’t even call them “infringing” unless you’re confident they
actually are — and keep in mind that even today, the standard in the
U.S. for *criminal* copyright infringement requires 1) the existence of
a valid copyright in the work being distributed; 2) infringement by the
defendant; 3) *willful* infringement by the defendant; 4) infringement
by the defendant for commercial advantage or private financial gain.
Some jurisdictions also that the government prove absence of a first sale in the allegedly infringing works. After all of that, acts
undertaken in the exercise of Fair Use provide for an affirmative
defense, meaning that you should know that there is no Fair Use
exception for the activities in question. If you don’t know all of
that, perhaps you’re better off not telling people what they’re doing
is “illegal”.

Pat Benatar wrote that “love is a battlefield” but I think she really meant that “language is a battlefield” the battlefield where such things as love and the nuances of intellectual property get fought. I like Branden’s post a lot because it fully recognizes how important the politics of language is in this whole debate, a politics that requires the transformation of everyday language usage as well as much tougher language battles in which common society-wide perceptions and definitions that are propagated through powerful and mainstream economic and social institutions must be altered too.

I love pirates but the media industry in concert with the government is making pirates of hackers and common citizens which then helps to define what the legal nature of copyright is. And this is accomplished through many means but it always has to function through the web of language. Hence the power alone of a word like copyleft is that it, among many other things, denaturalizes the term copyright, cracking it open to scrutiny and possibly opening a path for change… Branden in his post argues that copyright is not a natural right but a socially bound privilege that is quite mutable. People forget this and a collective jog of the memory is a good thing to undergo. Playing around with the even the minutiae of language helps to free certain terms and concepts from what we think they are… We have to be reminded from time to time that language is not a disembodied thing but a tool whose contours and shape should change depending on the work at hand.

The thread had many other interesting points but it ended with another powerful statement:

Perhaps we need to be thinking about alternative ways to uphold the
“protection of the moral and material interests resulting
from…scientific, literary or artistic production[s]“?

Surely existing copyright, trademark, and patent regimes, to say nothing
of “work-for-hire”, “paracopyright”, and “trade secret” concepts, are
not the only ways to give Article 27 force and meaning.

In other words, I don’t think it *necessarily* follows from Article 27
that we must have a global oligarchic hegemony of media corporations
dictating to us what we shall and shall not read, watch, perceive,
write, and share with our fellow human being.

I found this statement quite exiting. I guess in some ways, I have always thought about the current IP system as inadequate, the solution being a variation of an already existing scheme (as the copyleft does). But why not, why not, come up with a radically different incentive scheme? In some ways this seems to obvious but often some eloquent powerful statement is what is needed to inspire a new plane of thought… Ahhhh the beauty, the power of language…

No Comments »

No comments yet.

RSS feed for comments on this post.

Leave a comment

XHTML ( You can use these tags):
<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong> .