[pp.int.general] "Natural" law

[Carlos Ayala Vargas]

8 jan 2009 kl. 13.55 skrev Reinier Bakels:
>> Yes, some politicians say this.  And they will continue to repeat 
>> such things until enough people reject the idea.
>>
>> Those who support sharing must refute their views of "human rights", 
>> not duck the issue.
> OK. Please help me to explain this is nonsense. I would prefer 
> non-legal arguments to address the issue ("look at it from a different 
> angle") rather than trying to counter the argument head-on.
But if the /argument/ is a plain lie -often they are-, why would we 
avoid to prove that it's a lie? E.g., Spanish IP law states that levies 
are motivated by private copying, and that only human beings, not 
entities, are entitled to make private copies; when a court remarked 
this fact -while it too often is found as surprising, actually judges 
should make judgments following rule of law-, and RMOs were threatened 
with levies paid by entities being abolished, they threatened back with 
raising levies to be paid by human beings as "/the difference has to be 
compensated/"; what /difference/? *It's illegal to collect levies to 
entities, and enough*; and if it's illegal, why should we be shy to say 
that it's illegal?

Furthermore, in Criminal Law (at least in Spain, I guess that also in 
your countries), when a politician -even a Minister- dictates a rule 
while knowing it's unfair, it's considered as a crime (prevarication); 
if even Spanish government dares to approve such a rule -raising levies 
due to abolition of levies paid by entities-, PIRATA will bring the 
responsible people to justice. Because If I have to find something 
having no sense, it would be avoiding to remark the illegality of 
something suffered by some, many or all of us.
> Even in those legislations where the private copy is allowed, 
> publishing for private copying (uploading) is not allowed
Maybe the legislator thought of modifying the law in such terms, however:

- prior to 2006, it was allowed
- after 2006 /IP/ law modification, it's not clear whether it is allowed 
or not -due to certain ambiguous wording in specific articles-, and no 
court of justice has judged on that issue in the /civil arena/ -they 
have already judged in the /criminal arena/, obviously finding it not a 
crime without commercial profit-

Or maybe are you aware of Spanish civil judgments regarding this 
concrete issue? Bravo, de la Cueva, Sanchez Almeida, Campanillas and 
many others would be quite interested if you are aware of ... though I 
think you aren't because -as far as I know- there aren't.
> and using illegal material may be considered fencing
As long as it is illegal. If it's not illegal, there is no fencing.
> One might argue that the private copying exception actually was 
> created because the police could not reasonably enforce copyright in 
> private homes
Actually that was the reason in Spain; a wicked reason, indeed, but the 
one given specially by Popular Party MPs -who even encouraged DRM-like 
measures instead of allowing private copying-. Here we are trapped 
between two stances in the Congress:

- PSOE & Co: allow pretty restricted private copying and, also, allow 
hundreds of millions of levies to be earned -of course- by the 1.000
- PP & Co: allow only backup copying -not the same as private copying, 
except for software where private copying (in Spain) is not allowed- ... 
and however not to fully abolish levies, but to transform them
> but the counter argument is that with the development of p2p 
> conceivably only one record is sold for the benefit of the artist, and 
> everybody else benefits for free.
What a *huge* lie, who stated that? RIAA? MPAA? SGAE? SACEM? Just think 
of Nine Inch Nails and Radiohead and it will be easy to counter such a 
huge -as huge as feeble- lie. They may counter back with the fact that 
those are famous artists but ... hey, then the supposed /absolute truth/ 
wasn't that true ... and we can continue with Jamendo and many other 
arguments.
> There is of course an answer, but it is not a legal answer - about the 
> interpretation of a human right.
Actually it depends on whether RMOs are willing to apply the Choruss 
approach universally and through ISPs

http://techdirt.com/articles/20081209/0144083060.shtml

Then our privacy would be compromised and, of course, human rights would 
again be on stake.
> Correct me if I am wrong.
Think you better prove you're right -at least for the Spanish scenario, 
I can't talk about the legal framework of other countries-.

Per von Zweigbergk wrote:
> In this particular issue, it's not a human rights issue - the issue 
> whether of not imaginary property is property or not.
Of course, whether or not intellectual works are property or not is not 
a human rights issue.

However, there are several human rights issues affected by controversies 
around that central issue, namely privacy (surveillance), right of 
association (authors being forced, at least in Spain, to join RMOs, 
otherwise losing some of their rights), freedom of speech (RMOs 
harassing oppositors and governments being willing to give them 
censorship powers for the Internet), freedom of information 
(non-commercial free filesharing being currently disallowed), etc.
> Some people imagine that copyright is property (that's why I call it 
> imaginary property). Of course you're not going to counter this 
> argument by using human rights arguments directly.
>
> By refuting that imaginary property isn't property, the flawed human 
> rights argument falls by itself.
Agree. However, I think it would only serve to solve part of the 
problem; e.g., the right of association (authors being forced, at least 
in Spain, to join RMOs, otherwise losing some of their rights ... and 
actually losing anyway all their rights once joined) remains as author 
rights -even a reviewed (by us) version, with commercial rights reduced 
in term & scope- remains; also, some of the human rights issues 
abovementioned would also remain in spite of the /intellectual 
pro...whatever/ fallacy being demolished.

However, as I said, I agree on demolishing that fallacy being quite 
helpful :) Regards,


                                                                                                   
Carlos Ayala
                                                                                                   
( Aiarakoa )

                                                                                
Partido Pirata National Board's Chairman