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The End Of The Cycle

Friday, March 31, 2006

The End of the Cycle

[Translation of Fin de Ciclo by Carlos Sánchez Almeida published in Kriptópolis on 28-Mar-2006. Carlos Sanchez is a lawyer who has been fighting for cyber rights and freedoms for many years. The copyright situation is Spain is a little different to other countries and recently a law has been introduced requiring a duty to be charged on every blank CD, DVD, recorder and playback device sold. The administration of this duty is in the hands of the SGAE (The Spanish general society for authors and editors, equivalent to the RIAA in the US)].

“Therefore it is necessary to dismiss some ideas and misunderstanding, which may or may not be deliberate, about intellectual property. You should know that this type of property does not present an obstacle for the free circulation and development of ideas and inventions; on the contrary, the special protection that intellectual property offers must not be confused with a tax or tribute that harms or prevents economic, social and cultural development, but is an incentive for continuing to create wealth and culture for the benefit of society and of the individual.”

(Gaspar Llamazares, spokesperson of the parliamentary group of Izquierda Unida, explaining his vote in favour of the proposed law of Intellectual Property. Session diary of the Parliament.)

1. Selected reading

Before coming to this round table, I had to submit myself to a session of pure masochism: I read the entire transcript of the Session of Parliament where they approved the proposed Intellectual Property law. I knew that it contained hidden treasures, and at last I found them: see the quotation that heads this text, the enthusiastic shout of an old communist militant in defense of the creation of wealth. Fascinating...

Please allow me a digression before I start on my topic. I am going to use, one last time, one of those ridiculous metaphors of war which seem to pepper the writings of cyber-activists, and I admit my lapse: I also once said, “No pasarán - They will not go further,” but they did.

The battle front at San Jeronimo, towards the end of the war: the army of copyleft has been captured and disarmed, the troops of the SGAE have reached their final military objectives.

But no. This is not a war, nor are there winners and losers. When Parliament approves a legal text with more more than 300 votes in favour, with a broad consensus of all the parliamentary forces, the it is clear that those in opposition to the law are now an extra-parliamentary group.

Whether we like it or not, in a democracy the majority are right, as well as having the power. And a huge majority of the Parliament has given the green light to a law that a large majority of the bloggers consider mistaken.

One of those two groups must be wrong.

2. Looking back without anger

Four years ago, when the Internet law first came into force, we who opposed the law saw ourselves in the disagreeable position of having been defeated. The majority of Parliament had decided to enact the Law of Services for the Information Society (Ley de Servicios de la Sociedad de la Información - LSSI). The campaign against the law was led by Kriptópolis and was supported by an number of other groups. Our role was to provide parliamentary opposition and in spite of our arguments, we lost the case: the Spanish Parliament decided that an Internet law was necessary.

The first thing I did when the law was officially published (in the Boletín Oficial del Estado - BOE) was to acknowledge the defeat. Some still continue fighting today, like those Japanese who continued fighting the second world war on an isolated Pacific atoll. But most of us accepted that the LSSI coming into force meant a distinction between a before and an after. Accepting defeat in a democracy is more than mere courtesy. It is the fundamental characteristic of the system: the respect for the will of the majority.

And it is also the point of departure for being able to win - by persuasion - one day in the future.

Today, if you read the commentators in the so-called blogosphere, it seems that the defenders of copyright are completely isolated, surrounded by an army of enraged forces; that the standards of free culture are flying at all the fronts; that there are no wire fences, nor boundaries nor boundary stones in the fertile fields of the global village. That the whole future is Creative Commons.

But clearly, the Boletín Official del las Cortes Generales says what it says. And what is today black ink on white paper in the Session Diary, tomorrow will the BOE. And once laws come into force, the judges usually apply them.

And if you go out into the dark forest of the Internet, in the middle of the night, and cross the shadow of an enacted law you will have to abandon all hope. Precisely because it is not Dante, nor Virgil, nor even Beatrix that we are looking for on the P2P networks.

3. Things are as they are and not as we would like them to be

A few years ago, before some of the most popular blogs existed, but when the traditional web site of my traditional clients doing traditional business over the traditional Internet, I published and article in Kriptópolis titled, “Digital auto-culture: the right to private copying”, where I wrote ironically about the huge possibilities presented by the digitalization of information.

The right to make private copies was a burning issue then. But at least it was embedded in the law at that time. It was a right that could be successfully argued, partly owing to the lack of capability of the equipment fighting against it. But then they started to talk about massive penalties against the P2P networks. Since that time there has been an abundant and verbose legal case literature to bore one to tears.

The problem is that the issue is no longer burning, neither is it even smouldering red. It has been liquidated, and is nailed to a crack in a flaking wall.

From the moment that the Law of Intellectual Property comes into force, the right to make private copies will be reduced to the minimum possible. Just sufficient to be able to sustain a tax on digital copying equipment; the collection and distribution of this tax has been put into the hands of the organisation that manages the rights of the authors. This tax, decided by our Parliament, will be collected by private entities.

There are two consequences of this, which I now proceed to analyse.

a) An isolated penal law finds a stable partner

January 2003. A little after the Internet law came into force, the government of Aznar made public its proposal to reform the penal code. I shouted myself hoarse for months complaining about the reduction of civil liberties that this law implied. A group of Members of Parliament took a bit of notice of what I had been saying and presented amendments against the new regulation in article 230 of the penal code. Whoever is interested in legal interpretations can dive into the Session Diaries of the year 2003 and find it there.

The penal code, as regards infractions against intellectual property, is a penal law waiting for a target. It establishes the penalties to impose on those who act against intellectual property rights defined in a different law: the Intellectual Property law. So when, for example, the penal code talks about public communication, the new reference law tells us that one of the definitions of public communication is interactive communication.

That was the first act of what was to follow. And it slipped through. It also slipped through on the Internet because the news spread that nothing was happening, that it was a neutral reform, that it preserved intact the right to make private copies. This is the burning issue that I talked about earlier, an issue that one day will hang us all.

The penal code came into force a year later, in October 2004. Those who had voted against it when they were in opposition let in come into force when they were in government. They were waiting for an appropriate moment to find its partner.

And here we have it, ready to deploy, from the hands of its godfathers, the most excellent Mr José Montilla (minister for industry) and Ms Carmen Calvo (minister for culture).

In a year, it will have its descendants in the form of a new and final updating of the law. But I will not be here to tell you about it; I am going to leave it in the hands of the usual protesters. Those who continue working here, nailed to the wall.

b) The real victims of the reform: my clients

Now I am going to start my impassioned appeal to your common sense. This is a law against the future; the politicians have no understanding of digital media. And again, thousands of little egos, incapable of agreeing about anything except attracting useless visits from bored web surfers, will again say that the real World does not understand them.

And nothing will happen to them. They will continue as they have done until now, comfortable in their armchairs. They will not confront the real problems, I don't mean of the future, but of the present.

These are the problems of those who have to struggle to survive in an oversubscribed market with reducing margins. The problems of the army at the bottom of the Information Society. Those that the gurus of the blogosphere look down on: the real workers, those who sell the hundreds of thousands of toasters, the hundreds of millions of CDs and DVDs and those who suffer the miseries of the entertainment industry each night. The real ground that supports the dreams of “free culture”.

The real problem of the law of Intellectual Property will not be experienced by the domestic consumers. Their major preoccupation is to see the end of 'Lost' before their neighbour, who is still watching the first series, so that they can feel superior in their technological prowess. They are not aware that they are as alienated as their elders. They are not aware how they have closed the circle of technological freedom to become chained exactly as they were before: slaves of the small screen.

No. The real problem is now being suffered by the hundreds of small computing businesses who are currently receiving judicial demands. Demands in which they are being forced to pay a retrospective duty for CDs, DVDs, recorders and MP3 players which in some cases goes back to 1999.

CDs. DVDs, recorders and players that were sold at reduced margins when the duty was not contemplated. Many small businesses are going to have to find money in their pockets, money that they have not made as profit, to to pay a huge debt to the management organization which it wants to recover with interest in the ecstasy of triumph.

This is the real problem, the real battle, and the ultimate reason why I am going to stop writing on the Internet.

4. He who contemplates his belly too much, forgets about the horizon

The important thing isn't culture, but human beings. When human beings are free, their culture is free. When human beings are domesticated, asleep, turned into marketing objects for consumer products, their culture is domesticated.

It has always been this way, let us not fool ourselves. Seneca, Cicero and Plutarch have come down to us... but in their time, the masses filled the circuses, not the libraries. And in spite of all the destruction, all all the censorship, all the bonfires, real talent has reached us in the form of the classics.

Perhaps in their time, some versifier, singer or miserable gladiator was better known than Ovid who died of sadness in distant Tomis (far from Rome). Today, Ovid is laughing his head off in my library, free for ever from all Caesars, including the Caesar of Copyright.

A little while ago, I tried to find The Possibility of an Island by Houellebecq on the P2P networks. I didn't find a single source in Spanish. It doesn't matter that much to me: there is nothing as good as being able to read it on paper. Or to read Hernán Casciari: true culture can only be appreciated on paper as the screen is too small.

True books don't shout from their shelves or have thousands of sources on Emule. They are here, waiting for someone to come and look for them. Waiting for someone to save them from burning: from the fire, from time or from ignorance. Some survive, thanks to the hands of those who love them or those who are dedicated to the written word.

The Internet will only have a voice when it becomes conscious of itself and of its historic significance. In order for that to happen, we must first reject much of our ego for a long time and realise that talent is scarce: that the grand gestures of the human species are always collective gestures.

This is exactly what it appears to be, a farewell. In the future, I will try to fight for what I believe in from the silence of my office. If I raise my voice, some judge will take it on himself to correct me. I am returning to my own place.

It has been a pleasure to share cyberspace with you. I wish you all the luck in the world.

Carlos Sánchez Almeida
Round table on digital technologies and the crisis in the cultural industry
University of Valencia, 28th March 2006.


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