Intellectual property subversion, non-consensual pornography need to be covered

[mattreecebentley]

Overview

Personally, I would like to see the use-cases of non-consensual pornography (deepfakes, deepnudes, sharing of private photos not cleared for public distribution) covered, as these are obvious violations of privacy and constitute indirect harm. I don't see anything in the license at the moment which would cover these use-cases AFAIK.

Secondly, I would like to see software designed to violate intellectual property rights added to the list. This includes but is not limited to, software designed for piracy (eg. "Popcorn time") and software designed to violate viewership agreements (eg. software which circumvents paywalls). Creatives are workers too and deserve to be renumerated for their effort and skill. The studios they work for also deserve renumeration, as not having ample "umbrella" funds means they are less able to take risks on less middle-of-the-road material. Software which facilitates piracy does not acknowledge this and destroys industries (see: music industry).

Proposed Resolution

I am unsure of exact wording. Piggybacking off the DMCA and saying 'software intended to violate DMCA' would probably suffice for piracy/intellectual property issues. For non-consensual porn, I would add a clause regards to 'software intended to facilitate violations of privacy to individuals or subject them to indignity and harm' - or something less subjective but with the same tone.

[CRImier]

DMCA is a wide net that impedes right to repair, right to reuse and a whole swath of other consumer rights big and small; sadly, the same can be said for intellectual property enforcement principles and mechanisms.

[CRImier]

also, the claim about music industry being destroyed sounds greatly exaggerated, source?

[mattreecebentley]

DMCA is a wide net that impedes right to repair, right to reuse and a whole swath of other consumer rights big and small; sadly, the same can be said for intellectual property enforcement principles and mechanisms.

Fair enough re: DMCA - but I don't agree regards intellectual property enforcement.

[mattreecebentley]

also, the claim about music industry being destroyed sounds greatly exaggerated, source?

Um, anything written about the music industry over the past 20 years, that wasn't written by someone with a bias toward free stuff and without statistics. One example of literally thousands:
https://musicbusinessresearch.wordpress.com/2015/03/26/the-recorded-music-market-in-the-us-2000-2014/

I actually don't have the time of day for people who make excuses for piracy anymore, having worked in the music industry. I repeat, Creatives are workers too and deserve to be renumerated for their effort and skill. The studios they work for also deserve renumeration, as not having ample "umbrella" funds means they are less able to take risks on less middle-of-the-road material.

[CRImier]

it doesn't matter if you agree - this is a fact, not a matter of opinion.

• same mechanisms that prohibit us from pirating music and movies, also prohibit us from making backups of music and movies we bought rights to listen to or watch.
• same mechanisms that prohibit us from copying console games, also prohibit us from playing them on emulators.
• same mechanisms that prevent hardware products from being copied, also prevent us from repairing them.
• same mechanisms that prevent software products from being copied, also prevent us from using them to their full extent.

these principles are fairly basic and have been everpresent in discourse around intellectual property as it pertains to making IP equitable for all parties involved - not just the party that has historically been benefitting financially in all manners including unfair ones. I appreciate the insight from the other end of the fence, but lack of acknowledgment of these principles makes it hard to engage with the point you're making.

[CRImier]

One example of literally thousands:
musicbusinessresearch.wordpress.com/2015/03/26/the-recorded-music-market-in-the-us-2000-2014

The post that you provided doesn't have anything to do with "software which facilitates piracy".

[mattreecebentley]

it doesn't matter if you agree - this is a fact, not a matter of opinion.

I'm sorry, but you clearly don't have a background in this stuff, and you clearly have an opinion.

* same mechanisms that prohibit us from pirating music and movies, also prohibit us from making backups of music and movies we bought rights to listen to or watch.

Incorrect. In NZ, there was always the right to backup while piracy of items you haven't purchased was not legal. The other points you've made are also not true.
I'm not reallly interested in having this discussion with you. Go and meet me 20 years ago, and I'll have this argument with you. I've heard it all before, and it's not true, or interesting, or worth discussing. All the excuses are just that.

[mattreecebentley]

One example of literally thousands:
musicbusinessresearch.wordpress.com/2015/03/26/the-recorded-music-market-in-the-us-2000-2014

The post that you provided doesn't have anything to do with "software which facilitates piracy".

... reaaally.

[CRImier]

I do have a background in this. I'm also listing observable facts that you have nothing to say about, except "this is not true". It's up to you to contest them properly.

In NZ, there was always the right to backup while piracy of items you haven't purchased was not legal.

How does that square with DVD and BluRay media - media that you have to break IP protections in order to backup?

I'm not reallly interested in having this discussion

If you weren't interested in having a discussion, you shouldn't have made an argument about your beliefs being important when it comes to ethical licensing. The ability to persuade people takes effort.

... reaaally.

I've reread this blog post carefully for the third time now, just to make sure. It talks about revenue splits between licensed downloading and licensed streaming. There's nothing about piracy there. It's on you to elaborate further.

[ghost]

(edited for clarity)
@tommaitland, @chrisjensen this issue may need high-priority triage. This issue is very similar to another one (I cannot remember which issue), but this one has a few very important points that are not covered by NoHarm. I am still scouting it out, and I'll report to you both when I come to a potential way to take action.

[ghost]

@mattreecebentley, @CRImier, @tommaitland, @chrisjensen

This issue is violating GitHub's community guidelines because the conversation is not open-minded, and there is little respect and empathy being shown.

I will exercise my ability to report this issue as a GitHub community member.

[ghost]

First of all, a way this can be resolved is that @CRImier and @mattreecebentley need to be more open minded. I could try to close the experience gap, but there needs to be cooperation between all GitHub users.

---

Second of all, as @CRImier mentioned:

DMCA is a wide net that impedes right to repair, right to reuse and a whole swath of other consumer rights big and small; sadly, the same can be said for intellectual property enforcement principles and mechanisms.

The goal of NoHarm is that the license is as easy to understand as possible, and the discussion needs to be as easy to understand for contributors that may not have the prerequisite understanding of the topic(s); both would not be possible with a "wide net".

---

I hope this cooled the conversation a bit. ;)

[ghost]

I would like to give a formal good morning to you @tommaitland. Sorry about the flurry of "@mentions" I sent earlier. The reason why I thought this needed triage is because we never addressed intellectual property, and I could tell that the conversation was starting get a bit heated, which is why I decided to apply the brakes. I am also sorry to say that there is not much information I could get out of this issue because it was very muddled. With the information that I do have, we may need to close this issue as unplanned (and possibly delete it entirely) and restart with a clean slate.

Once again, I am sorry for the rude awakening sir.

[tommaitland]

Appreciate the discussion everyone. DCMA/copyright protection istoo specific a harm for this license I'm afraid. Without weighing in too much to the substance of the debate here, we're trying to develop a license which covers the most significant harms to people and planet.

While I agree that theft of creative work is harmful, I don't think it meets a high enough threshold.

On non-consensual pornography, it's covered by article 12 of the UDHR

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

[ghost]

I actually thought the DCMA was a "wide net." It does not matter now any ways; I'm up for closing this issue. Anyone else with me?

[mattreecebentley]

I would prefer that there be a clause related to software whose only intent is to enable piracy - eg. Popcorn Time, Kazaa, Bearshare, the original Napster.
Those pieces of software have zero goodwill intent, they cannot be used for legitimate purposes, and only cause harm to creatives and their industries. (side note: anybody chiming in to say that "not everybody can afford to watch/listen legitimately", that's not relevant. There is tons of free online astounding content by film-makers/musicians being uploaded every day to sites like bandcamp and vimeo.)
I would prefer a wider net, but the license in it's current state already has very specific non-wide areas under section 5, and it would be relatively easy to add in a more specific clause around this issue. If there is not, I will not use the license.
Regards empathy, well, you see your industry being beaten to death, then you talk to me about empathy.

[tommaitland]

We've tried to keep section 5 fairly broad, for example we say "hate speech" instead of detailing all the different forms of hate speech and discrimination.

I think here we are discussing adding piracy or theft under "addictive or destructive products and services".

I've mentioned this in my response to other suggestions that are quite specific. As best we can we need to avoid playing whack-a-mole with this license, as there is a lot of things it could include. This world is far from perfect.

As it's currently written, we're trying to cover the greatest thematic harms to our world that prevent our software being used by bad people.

Back on piracy. Piracy is generally (to my knowledge) considered illegal, although not often enforced. I made a comment on the thread about hacking that I don't think we need to try to replicate criminal codes here (see #73 (comment)).

All to say I think piracy is not a fit for the license because it is:

• Too specific
• Is difficult to evidence the scale of harm
• Covered by the law

You could of course fork it and generate a version which does take a more specific approach to issues than we have here.

[mattreecebentley]

We've tried to keep section 5 fairly broad, for example we say "hate speech" instead of detailing all the different forms of hate speech and discrimination.

I think here we are discussing adding piracy or theft under "addictive or destructive products and services".

I would rather discuss adding intellectual property infringement as a whole, but you seem to be unsure as to what is too specific and what is too broad, and I'll leave that side of things to you.

As it's currently written, we're trying to cover the greatest thematic harms to our world that prevent our software being used by bad people.

Back on piracy. Piracy is generally (to my knowledge) considered illegal, although not often enforced. I made a comment on the thread about hacking that I don't think we need to try to replicate criminal codes here (see #73 (comment)).

The argument that it's illegal therefore shouldn't be covered also applies to both of the trafficking issues you've got in section 5, both of which are illegal and very, very specific. If your argument is that they're not illegal in all countries, well, neither is piracy.

All to say I think piracy is not a fit for the license because it is:

* Too specific

Then feel free come up with a broader scope, but I would encourage you to include it.

* Is difficult to evidence the scale of harm

The majority of people I've come across who claim such a thing are trying to shift the internal cognitive dissonance they have from consuming media for free against the wishes of the creators, and thereby breaking societal trust, vs their impression of themselves as a good person.
There is no research which supports that claim, outside of some poorly-designed social experiments run by students which're then quoted on torrentfreak and the like as being 'hard science'.
The reason I don't bother engaging in those kinds of discussions is that, like anti-vaxxers, giving information only tends to harden people's positions, because they're not coming from a place of rationality. It's best just to walk away.
Ciao-

[CRImier]

First off, I appreciate the added nuance in shifting from

software intended to violate DMCA

to

software whose only intent is to enable piracy

While this does not quite address the issues I've brought up, it's a step in the right direction. I hope you continue to update your statements with necessary nuance as time goes on.

The power of media companies is well-known and hard to argue against. They've been passing laws left and right for decades, lobbying manufacturers to add technical limitations into hardware that we have no choice but to buy, and known to err of the side of squeezing as much money out of people as possible.

They've been actively limiting consumer rights, forcing them to buy the same media multiple times due to artificial restrictions such as region locks - when it's up to these industries, things get worse for consumers. Entire media formats have died because the protections put in by media companies were too bothersome.

In the words of someone responsible for creating the most successful videogame digital distribution service, "piracy is almost always a service problem", a problem that media companies currently compensate for by doing a myriad of things that are the opposite of providing a better service.

We have generations of CPUs and GPUs coming up that have been designed to protect media playback from being captured by the user specifically - for a decade now. This is wild. You have to be pretty powerful to have Intel and AMD keep building these things into processors for you. Whether it's region locks, predatory laws, or artificially limited and fragile hardware built with planned obsolescence firmly in mind, if this is the power the media industries wield but still can't achieve their goals with, they have it coming.

It's media companies that can afford to get full advertising revenue for a two-hour YouTube video because of a 6-second audio segment. When it comes to defending creatives, you're not defending all of them here - only the creatives who decide to opt for the protection of the specific problematic industry you've been working for. If you think this is your fight to pick, be my guest, but the entities you're protecting sure don't need the protection of ethical licenses.

It's not fair to have an ethical software license ask to compensate for misgivings of huge industries - industries known to mismanage the creative works they're responsible for delivering to people; industries that have historically been handsomely paid for doing so.

Why should this license compensate for problems of large industries that are able to get laws passed?

[ghost]

I'm with @CRImier and @mattreecebentley about piracy, but I also agree with @tommaitland about keeping the license short and broad. Economically speaking, if there was a steady and stable economy based on music/art, then, the harm could be justified, but there are only a relatively small set of people who compose music or create art compared to other industries/economies, so there is no such thing as a(n) music/art-based economy, and harm to the music/art industry is hard to pin down.

Also, I would recommend going off of my fork because I was able to clean up the license a bit.

[ghost]

@tommaitland, I found some data about global piracy:

• Pirated video material gets over 230 billion views a year.
• More than 80% of global online piracy can be attributed to illegal streaming services.
• Digital video piracy is costing the US economy between $29.2 and $71 billion each year.
• 126.7 billion viewings worth of US-produced TV episodes are pirated every year.
• 70,000 jobs a year are lost in the United States due to music piracy.
• Annual global revenue losses from digital piracy are between $40 and $97.1 billion in the movie industry.
• Illegal downloading of copyrighted materials takes up 24% of the global bandwidth.

With piracy in context, except for the global bandwidth and economic issues, it looks like piracy is merely a nuisance to me. What do you think?

[tommaitland]

I'm going to close this, my rationale is in my previous comment

[mattreecebentley]

Case in point.

[ghost]

Case in point.

@mattreecebentley, what do you mean by that?

[mattreecebentley]

Case in point.

@mattreecebentley, what do you mean by that?

Well, if you refer to my previous comment, then you refer to your previous comment (which would indicate greater-than-nuisance-harm), and the lack of response to it, it is clear. And actually Crimier's comments fit into the same category. The usual cherry-picking nonsense with no reality-checking from people who're actually affected. Anyway, bye

[CRImier]

if you notice yourself getting the same response again and again, it might be worth reconsidering what you ask for.

[ghost]

Never mind. 🤦‍♂️