“a big mistake, but one that Congress can make”

Posted on February 21, 2006 by Lessig

Marybeth Peters, Register of Copyrights, on the latest extension to the copyright term: Watch here.

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202 Responses to “a big mistake, but one that Congress can make”

  1. Paul Jones says:
    February 21, 2006 at 4:08 pm

    Peters is speaking in response to a question from Cory Doctorow at conference at UNC last November. The video was shot by UNC-TV and digitized by TJ Ward of ibiblio.org.
    See also Cory’s Boing Boing posts about the webcasting flag and the term of copyright (in the US)

  2. Paul Jones says:
    February 21, 2006 at 4:37 pm

    The blog shows no comments, but I see my comment here. What’s up?

  3. Jim Powers says:
    February 21, 2006 at 6:52 pm

    It is nice to see *someone* in Washington say this, alas, the “wrong” person merely because it won’t “do” anything. But I will try to remain optimistic (an increasingly hard thing to do when confronted with an overwhelming body of data which indicates that congress is ONLY going to expand the powers available to copyright holders, never curtail it) that this statement may be the tip of an iceberg of change.

    Because the issue of copyright is not a “hot-button” issue congress will never take it seriously that this issue needs redress. “Floor-time” for legislation to revamp basic copyright law (such as length of term) and its associated legal cohorts such as the DMCA will never happen.

    In the past, I have been among the shrinking minority who would try to get others around me to understand what copyright is and how it is supposed to work and why it may not be such a good thing to simply download that piece of music or movie without eventually paying for it (that is if you have decided to “keep” it. My personal moral code allows sampling via file sharing, although the law and certainly the RIAA/MPAA don’t agree) by buying a “legitimate” copy. Things are pretty grim, however: practically infinite copyright terms (certainly as it applies to my lifetime) coupled with the DMCA/DRM monster I’m at the point of abandoning all hope and embracing piracy. I go further: I’m actively contemplating encouraging piracy because I consider significant financial retribution just deserts for what the “copyright cartel” has done to the “commons” and to our individual rights. My thinking is that a grass-roots movement where overwhelming numbers of people around the world simply take copyrighted materials as their own might have a sobering effect on our legislators and enable them to see the error of their ways.

    … who am I fooling? About 0.00001% of the population understand or care about these issues. Truly sad.

  4. poptones says:
    February 21, 2006 at 10:03 pm

    By various reports, 75 to 90 percent of the music cds purchased in Ukraine are pirated – and even more than that further east. In spite of that, Sony, Elektra and other old school players still manage to maintain a viable presence there AND attract talent.

    You can rationalize genocide or anything else you like, that doesn’t make you right. Embracing piracy hurts the smaller fish who need incentive to stay away from the sharks in suits a hell of a lot more than it hurts the sharks.

    Your life is not going to end without Mariah. Pirating label music is a slap in the face to every talented, creative artist who supports the creative commons.

    Don’t be an ass. If you are an advocate of piracy, you are no friend to this community.

  5. John J says:
    February 22, 2006 at 2:06 am

    Stealing copywrited material is big business in many poorer countries. And it doesn’t stop there – jeans, watches, you name it… It has been around forever – and it isn’t going to go away. The music industry is just going to have to use technology to thwart the thieves. Whatever the government does is going to be ineffective …

  6. Jim Powers says:
    February 22, 2006 at 5:59 am

    You can rationalize genocide or anything else you like, that doesn�t make you right.

    Clearly, right and wrong are poorly defined arbitrarily used words. If I would ask you what you thought was “right” and “wrong” your list would not be the same as someone else’s. I don’t think this comment is constructive.

    What I am advocating is more akin to civil disobedience. At points in our history people did “wrong” (for some appropriate definition of “wrong”, usually meaning breaking the law) things in order to, with our modern perspective, achieve a “greater good”.

    As far as the pirating hurts comment, you do realize that that is a required aspect of this action. The point is that there are certain businesses and organizations that must have their business methods debased. The hypothesis is that companies and businesses that participate in propping up the business methods represented by say, the RIAA and MPAA which include continued and effective programs to extend copyrights to infinity and hold hostage their customer base via DRM and the DMCA need to be forced into a change of heart. Pain and suffering is inevitable. Through the “pain” companies will begin to distance themselves from the practices of companies represented by the RIAA/MPAA (that literally want to “stop time” by only legally allowing “traditional uses” of their products) and begin to embrace new and interesting ways to sell their copyrighted materials that does not trample on the rights of consumers.

    The corollary to all this is that I am already a criminal! Not for theft of copyrighted materials, but because it remains an illegal act every time I play a DVD on my Linux-based computers. This criminal status I have attained is the direct result of the power that has accumulated by the “copyright cartel” and the application of that power.

    As you might have already gleaned from my comments so far: I do “rationalize” piracy as viable weapon in the arsenal of civil disobedience in this concern (lowering copyright terms and wiping from the books laws like the DMCA, this, at least gets closer to some kind of “balance”, if there was ever such a thing). In my mind the problem is once you turn on the “piracy” bit is is very hard to turn it off once some sort of “goal” has been achieved.

    As far as If you are an advocate of piracy, you are no friend to this community. methinks you’re being a tad judgmental. What I seek is:

    First: a halt to all expansion of copyright-based laws that are intended to make consumers of copyrighted materials criminals by default, or criminals as a result of “traditional” fair-uses of copyrighted materials.

    Second: an actual REDUCTION of the length of the copyright term. Personally I cannot see a rational argument for anything longer than 20 years.

    Third: an expansion of “fair-use” applications of copyrighted materials.

    To achieve these goals I am not eliminating anything from my arsenal. If you are going to hit me with a “means/ends” argument hold your breath, I am fully aware that certain of my means have “victims” associated with them. But, dear reader please realize that members of the “copyright cartel” WILL be “victims” if ANY of my goals are achieved. There is no “victimless” way about this. Feel free to spin “well, perhaps if we sit down with the MPAA/RIAA to come up if a joint position where they will also back the contraction of copyright holder’s powers” as “victimless” you’re not fooling anyone.

    In the end, I believe that I am a “friend” of this “community” in good standing.

  7. poptones says:
    February 22, 2006 at 7:45 am

    More rationalizing bullshit. Civil disobedience is pointless in the comfort of your living room: it is thetorical masturbation.

    The facts are:

    During the peak years of “piracy” in the US the RIAA reported growing profits with every passing year.

    The RIAA organizations maintain a growing corporate presence even in the countries where american notions about intellectual proerty have almost zero popular support. They are able to do this because they control the channels of popular communication – the hotwire into the living rooms of the world – and all the file sharing in the world will not change this.

    “Piracy” costs record companies potential profits. But “piracy” in the context of file sharing has exactly the same net effect as “broadcast” – every time you “share” Madonna you give the plantation owners voice; you stick another needle in the arm of a culture that needs to change, and in doing so you help perpeptuate the control of the very people you claim as some sort of enemy: You feed the corporate propaganda machine that is the source of your banal resentment.

    If you want to change things, you share the works of the people who cater to your line of thinking and, in doing so, you give them voice. You respect the value of intellectual works and you encoourage those around you to do so and, in doing this, you give them motive to seek alternative sources of entertainment – works created those who share the values of the new culture.

    Your rhetoric of destruction has been refuted countless times in forums the world over. The facts of your argument are obvious: the entertainment industry is not your “enemy” at all; they are the monkey on your back that you have come to think of as a warm coat and all you are trying to do is rationalize theft of the junk that gives you fix. You don’t want things to change at all – you want the system exactly as it is so you can continue to feed on the hype and polish of a corrupt industry.

    Your rhetoric is an astral beacon of hypocrisy. if you want things to change, you will never accomplish that goal by rationalizing away your responsibility to the values you claim to uphold.

  8. nate says:
    February 22, 2006 at 10:12 am

    > I believe that I am a “friend” of this “community” in good standing.

    I second this, and appreciate your comments, Jim. I don’t know if you’ve found the right solution, but I appreciate that you are looking for it. Keep posting!

    > because it remains an illegal act every time I play a DVD on my Linux-based computers.

    I’d be interested in hearing someone make the case that playing your legally purchased DVD under Linux is not just legally but morally wrong, whereas playing that same DVD on that same hardware is just fine. Is there anyone out there who uses Linux and avoids playing CSS protected DVD’s for moral reasons? (that’s a real question). My guess would be that there are not, and that some people are just more comfortable with have unenforced laws on the books than others.

    –nate

  9. Jim Powers says:
    February 22, 2006 at 2:37 pm

    More rationalizing bullshit. Civil disobedience is pointless in the comfort of your living room: it is thetorical masturbation.

    Hmmm. You seem to know a lot more about me than seems possible.

    This outburst is easily put down: who says I would confine any action I would take on this matter to my living room? Or my home for that matter? Should I consider taking some sort of action that I would deem effective towards achieving the goals previously stated, I assure you that these actions will not be limited to my “living room”.

    During the peak years of �piracy� in the US the RIAA reported growing profits with every passing year.

    I am well aware of these facts.

    The RIAA organizations maintain a growing corporate presence even in the countries where american notions about intellectual proerty have almost zero popular support. They are able to do this because they control the channels of popular communication – the hotwire into the living rooms of the world – and all the file sharing in the world will not change this.

    We are in agreement about the channel of communication, mostly. Regarding the file sharing issue I think that you will eventually found mistaken. Or more precisely, you can be found to be mistaken. Also, please don’t even consider P2P or other “typical” file sharing as the end of the line with regard to the potential civil disobedience action I have in mind. Give away CDs, files, USB drives, etc can also be applied. Basically any medium capable of furthering this cause could be used.

    I also agree with your general interpretation of the expansion of RIAA and the member companies that they represent into countries that may constitute “future markets”.

    �Piracy� costs record companies potential profits. But �piracy� in the context of file sharing has exactly the same net effect as �broadcast� – every time you �share� Madonna you give the plantation owners voice; you stick another needle in the arm of a culture that needs to change, and in doing so you help perpeptuate the control of the very people you claim as some sort of enemy: You feed the corporate propaganda machine that is the source of your banal resentment.

    Ok, I’m going to try to say this again more clearly:

    The actions I’m contemplating will not be victimless the purpose of any action I would contemplate would be to victimize are those member companies that the RIAA/MPAA represent. Their victimization will be the direct result of their continued application of draconian copyright-enabled controls.

    As far as “feeding the corporate propaganda machine that is the source of your banal resentment.”, again it should be apparent that this is in fact a desired goal. I want to push the RIAA/MPAA to the point of declaring marshal law. I WANT them to go berserk. I want them to pursue a course of action that deliberately brings to light their intentions: the eradication of fair use and total lock-down of all media conduits.

    This is a game of brinkmanship. When they are pushed to prematurely pursue what is ultimately their goal they will be rejected en-mass. By then all of use will be criminals, or, more likely, our elected representatives will be able to finally see the error of their ways because it will become apparent that the RIAA/MPAA tactics have resulted in backlash against themselves as well.

    If you want to change things, you share the works of the people who cater to your line of thinking and, in doing so, you give them voice. You respect the value of intellectual works and you encoourage those around you to do so and, in doing this, you give them motive to seek alternative sources of entertainment – works created those who share the values of the new culture.

    This is a no-brainer. Consider it done. You really don’t need to get all frothy in the mouth with me to see, at the core, a decent person.

    Your rhetoric of destruction has been refuted countless times in forums the world over. The facts of your argument are obvious: the entertainment industry is not your �enemy� at all; they are the monkey on your back that you have come to think of as a warm coat and all you are trying to do is rationalize theft of the junk that gives you fix. You don�t want things to change at all – you want the system exactly as it is so you can continue to feed on the hype and polish of a corrupt industry.

    Again, I’m amazed at how much you know of me.

    The “refutation” of what ever “arguments” I’m putting forth is: 1) irrelevant and 2) quite “wrong” for a great number of cases. I will return to my “action” that I am proposing earlier: I believe that civil disobedience is in order here. Granted, it for a cause not quite as noble a cause as the civil rights movement in the mid part of the 20th century or the liberation of India from Great Brittan, but it does have a core set of goals. I certainly consider, from the vantage-point of the early 21st century that both of these causes were just and the civil disobedience that lead to these social changes justified. Therefore, I consider your “refutation” weak at best.

    As far as my “fix” that I want fed, I will have to reveal a bit about myself to illustrate: I don’t own a TV. Since I left home I have never had cable TV. I do not own an iPod. I do have a number of computers that I run Linux on, including my wife and children, and we do enjoy occasionally watching (legally acquired, but due to the DMCA I am not legally allowed to do) DVDs and I do rip CDs (that I purchased legally) into OGG files. I have also started to rip some of my DVDs to put onto a server for convenience. All I see is to retain my ability to do this. I wish to retain my ability to use the “media” I get for practical personal use. My days of doing that are rapidly coming to a close.

    As far as the “action” I proposed earlier I believe that the “hype and polish” of the “copyright cartel” will manifest itself as something quite “other” than that.

    Your rhetoric is an astral beacon of hypocrisy. if you want things to change, you will never accomplish that goal by rationalizing away your responsibility to the values you claim to uphold.

    I readily admit to be a hypocrite, I am comfortable with that. Are you brave enough to admit the truth which is that you are also a hypocrite? I thought so.

    This has been entertaining, but clearly you have been reduced to flailing. I would offer a simple suggestion: please don’t try to think you “know” to whom you are writing. Believe me, I do understand you position, and I do appreciate the fact that there are problems with what I’m proposing. But for me I do not equate “legal” with “right”. You may not be able to separate these two words, but I can. I am simply acting out of my subjective interpretation that what the “copyright cartel” is and are planning to do to the general public is not to my liking. Furthermore, I think it has little public benefit. My thinking is that the time is ripe to force some “natural selection” on the business practices of the “old-school” copyright moguls. You may disagree, that is your prerogative.

  10. ACS says:
    February 22, 2006 at 3:04 pm

    Stealing copywrited material is big business in many poorer countries. And it doesn’t stop there – jeans, watches, you name it… It has been around forever – and it isn’t going to go away. The music industry is just going to have to use technology to thwart the thieves. Whatever the government does is going to be ineffective …

    THis is the kind of limp BS that makes me sick. Government is not responsible for policing copyright and they never have been. It is the responsibility of the copyright owner to protect thier own intellectual property.

    As an Australian lawyer I often have cases of chinese and Thai foreign imports breaching trade mark, copyright and patents in this country. Often we can stop the imports once they are here but the Judiciary in many of those countries are simply ineffective (although China is starting to get the idea).

    This criminal status I have attained is the direct result of the power that has accumulated by the “copyright cartel” and the application of that power

    Typical, people see the RIAA suing pirates and they think there is a copyright cartel. THe truth is that the RIAA and studios like Sony and Universal are the only players who can bring these big infringment suit. The little guys cant afford to protect thier IP (In Australia alone an infringment case can cost 50-80k to get to final judgment) – Encouraging piracy only exacerbates the problem.

    > because it remains an illegal act every time I play a DVD on my Linux-based computers

    Nate, I think he is referring to the software used to play DVD’s on Linux as being illegal.

  11. J.B. Nicholson-Owens says:
    February 22, 2006 at 3:40 pm

    Nate: What stops me from playing DVDs is that most movies are movies I don’t want to see. I’ve become a more discriminating moviegoer so the vast majority of what Hollywood studios have to offer is simply unappealing to me, regardless of the price of admission or rental. My time means more to me, so I don’t waste it on things I think are junk. However, I recognize that my perspective is quite different from most people; lots of people enjoy what I eschew.

    To answer you more directly, I have no problem with people endorsing deCSS use if they want to watch their legally-obtained encrypted DVDs on their GNU/Linux system. I’m against railroading people into giving up their software freedom. I think that is a far more interesting ethical dilemma than it might at first appear to be.

    This is why I don’t publish MP3s, videos encoded with proprietary codecs, and texts in formats which require non-free software to read. I don’t want the stuff I publish to serve as a temptation for others to give up their software freedom. Fortunately, I don’t have to. All of the things I publish can be done with unencumbered codecs and Free Software, often with higher quality results than their encumbered and/or proprietary alternatives.

  12. poptones says:
    February 22, 2006 at 4:48 pm

    I want to push the RIAA/MPAA to the point of declaring marshal law. I WANT them to go berserk. I want them to pursue a course of action that deliberately brings to light their intentions: the eradication of fair use and total lock-down of all media conduits.

    You call for revision of copyright but ignorantly and stubbornly refusealso brings with it the burden to look objectively at the realm of “fair use.”

    Again, the facts are that DRM brings with it an issue of speech. It is every bit my right to publish legal works in whatever language or manner I please. It is my creative work, it is my right to publish – that’s the entire point of copyright and, in many ways, copyright is directly linked to our right to speech. If I want to publish my work cryptographically, in a manner that allows playback only on a particular device this is no different at all than my desire to publish only on LP records or 8 track tapes. The fact you can transform LP records and 8 track tapes does not mean you have now, or have ever had the right to do these things. I have the capability of driving 100 MPH through school zones, too, but doing so would make me a public menace and so I have never had that right.

    Never before in our history have the means of publication given us the ability to secure those rights of copy. it’s as if cars have never before had speedometers and you are arguing they shouldn’t, or the government should not have the right to regulate our speed on the public highways simply because there was never before the capability of measuring and enforcing such limits.

    This is not “brinksmanship.” DRM is coming whether you will aloow yourself to see this as fact or not – it’s here and the capabilities are going to expand, and this is not so black and white as your narrow focus on entertainment would paint it. DRM will allow the creation of scarcity and legitimacy in a field where it has never before been possible. The potential benefits this brings to our society vastly outweigh the potential downside.

    Your hypocritical rhetoric would have an entire world – a world where people are too busy in their daily lives trying to fend off starvation and oppression to worry about what Vanna’s wearing – remain in bondage simply because the alternative might interfere with your imaginary “right” to waste vast amounts of your decadent leisure time in a raptorious veil of media self indulgence and distraction.

    By your vapid rationalizations you are making yourself part of the problem. You are making yourself every bit as much a part of that oppressive establishment as the shark skinned vipers you would feed with your money and your “free speech.”

  13. Jim Powers says:
    February 22, 2006 at 6:06 pm

    poptones, I am relieved that you have chosen to actually engage in this discussion, when you are not trying to insult me you make some very good points.

    You call for revision of copyright but ignorantly and stubbornly refusealso brings with it the burden to look objectively at the realm of “fair use.”

    I don’t stubbornly refuse the burden to look at anything. I’m quite open to discussing this issue as well.

    Again, the facts are that DRM brings with it an issue of speech. It is every bit my right to publish legal works in whatever language or manner I please. It is my creative work, it is my right to publish – that’s the entire point of copyright and, in many ways, copyright is directly linked to our right to speech. If I want to publish my work cryptographically, in a manner that allows playback only on a particular device this is no different at all than my desire to publish only on LP records or 8 track tapes. The fact you can transform LP records and 8 track tapes does not mean you have now, or have ever had the right to do these things. I have the capability of driving 100 MPH through school zones, too, but doing so would make me a public menace and so I have never had that right.

    I deny none of your publishing rights arguments. You are also free to publish in something completely indecipherable, your prerogative, please do so.

    I do deny the limits you impose on can, in fact, I would resist and pursue every avenue possible to stop you or anyone else for that matter, from prohibiting me to transform legally obtained copyrighted into any form I wish for personal use. If it’s a book I can scribble on it, burn it, use it to level my coffee table, etc. If it is in digital form then I recognize no authority other than my own to do with this data as I please. I recognize no authority other than myself to control the devices I own outright to play or otherwise access digital content in what ever form I deem worthwhile. Now, the law and precedent may in some obtuse way say “no” to everything I just said, but this is exactly what I am on about when I said I want to see and EXPANSION of the realm of “fair use”. You are free to publish anyway you see fit, I am free to consume it any way I see fit. If the law prohibits this then the law, not me, must be changed.

    Your analog of driving a car at 100MPH is not applicable. I am talking about transformations I would make to copyrighted materials for personal use. Not about re-introducing my transformed versions of copyrighted materials back into a “public space”, like where a car drives. If I has my own private race track I can certainly drive my car at 100MPH.

    This is not “brinksmanship.” DRM is coming whether you will aloow yourself to see this as fact or not – it’s here and the capabilities are going to expand, and this is not so black and white as your narrow focus on entertainment would paint it. DRM will allow the creation of scarcity and legitimacy in a field where it has never before been possible. The potential benefits this brings to our society vastly outweigh the potential downside.

    DRM may be coming, this is not in dispute. What is important is that I don’t like it. I will go further: practically nobody likes it. There are some who do, but it is a tyranny of the minority here. I am sufficiently outraged by the proponents of DRM that I am willing and able to take extensive actions to fight the propagation of this scourge.

    In particular, the use of DRM to create artificial scarcity is EXACTLY and PRECICELY at the core of my hatred of DRM and all it implies: it is trying to apply the rules of the corporeal to the world of the ethereal. This is directly the results of sick-minded thinking. Why? simple: DRM dies not work. It is an essentially flawed concept without merit. There will never be a DRM system capable of stopping those who can make money from illegally circumventing the DRM scheme. It is a total waste of resources and time. Both of these are paid for by me and you. Yes, piracy is also paid by us to. But the irony is that if I buy from a pirate there is no DRM therefore retaining my “traditional” as well as expanded (according to me) “fair use” rights, while the legitimate version treats me as a criminal from the get go. As for the potential value to society that you allude to: you are a madman (or woman as the case may be) [look, I’m a hypocrite: I lauded you for finally stopping insulting me while I take a pot-shot at you, ironic]. There are far more beneficial results that would result from a world where information sharing actually works like the archetype that it is modeled after: the human brain. As a species we have literally millions of years of evidence that shows that shared information benefits society as a whole. You can continue to hold your position, but we will have to simply agree to disagree.

    Your hypocritical rhetoric would have an entire world – a world where people are too busy in their daily lives trying to fend off starvation and oppression to worry about what Vanna’s wearing – remain in bondage simply because the alternative might interfere with your imaginary “right” to waste vast amounts of your decadent leisure time in a raptorious veil of media self indulgence and distraction.

    Firstly, is this issue the “most important” in some way? No, there are clearly more pressing issues facing the population of the world: please take action to improve the situation. But when the conversation turn to copyright and DRM or “intellectual property” (whatever that means) then I have certain strong feelings about how I think things should work.

    That said, there is no excuse for not being vigilant on this front: the expansion of powers related to copyright needs to stop and be curtailed.

    By your vapid rationalizations you are making yourself part of the problem. You are making yourself every bit as much a part of that oppressive establishment as the shark skinned vipers you would feed with your money and your “free speech.”

    My you are full of characterizations of me, have we met before?

    Well, despite your repeated bullying attempts I hold my ideas in no less esteem no then when we started this little “get together”. I can assure that what many be “vapid” to you does indeed resonate with many people. I am not alone in the opinions I have expressed here, and even if I were I would still hold these opinions and defend them enthusiastically. Your arguments to shut me up have gotten more lucid with each attempt, but have done little or nothing to assuage me.

    As far as making myself “part of the problem”: I intend to sir.

  14. Jim Powers says:
    February 22, 2006 at 6:34 pm

    Typical, people see the RIAA suing pirates and they think there is a copyright cartel. THe truth is that the RIAA and studios like Sony and Universal are the only players who can bring these big infringment suit. The little guys cant afford to protect thier IP (In Australia alone an infringment case can cost 50-80k to get to final judgment) – Encouraging piracy only exacerbates the problem.

    The view of the RIAA in America is not a positive one. Some may sill see them as essentially going after pirates but after some recent public fiascoes such as suing people without computers for file sharing more and more of the public are catching on to the fact that the RIAA is engaging in intimidation tactics.

    The “encouraging piracy is only exacerbating the problem” comment could have been applied to any civil disobedience action that has ever occurred, so, this, in and of itself is an insufficient reason for not thinking about a civil disobedience action that could involve piracy.

    As far as the cost of prosecuting copyright infringement cases is concerned, I’m going to drop another bombshell into the middle of this thread: dissolve the copyright system. Ok, I’m crazy, I know. But it would work. Also, since I’m assuming copyright and IP attorneys read these threads so I’m not expecting much support here as it is an intrinsic conflict of interest for you to take a supporting view of this proposition. But I think the time has some to consider sunsetting copyright altogether.

  15. ACS says:
    February 22, 2006 at 7:32 pm

    Jim

    I’m going to drop another bombshell into the middle of this thread: dissolve the copyright system. Ok, I’m crazy, I know. But it would work.

    Well one of those statements is correct, probably the one you admit.

    The rise of Western Civilisation since the 16th century is directly related to the patent and to lesser extent copyright and trade mark systems. The system of Intellectual Property is, as one commentator put it, a pillar of a technologically forward society. Now I dont want to give a diatribe about why that statement is correct – safe to say – people will not publicise great ideas and expressions without some reward because the costs are prohibative. It is the reason why the Beatles or Windows or any other great product in history has been able to get into every individual home – because there was no identical ‘pirated’ product in competition.

    And there is another reason – respect. Do you not agree that if a person is willing to share thier creative effort with you then you should respect them by not altering thier work or not using thier work without thier permission? Do you believe that you have a right to something that they have spent thier valuable time working on?

    Civil Disobedience is an honoured phrase reserved for actions that are against laws that oppress individuals and groups. You consider the limitation on your right to enjoy the works of others, for free, as oppression. How warped you are.

    It is that kind of thinking that will return our society to where it was in the sixteenth century.

  16. poptones says:
    February 22, 2006 at 7:33 pm

    there are clearly more pressing issues facing the population of the world: please take action to improve the situation. But when the conversation turn to copyright and DRM or “intellectual property” (whatever that means) then I have certain strong feelings about how I think things should work.

    Your “feelings” are informed by ignorance, and the proof of my assertion is in that you are, despite repeated points made to illustrate this fact, unable to discern how these issues are completely intertwined.

    There will always be people who can counterfeit reserve notes, and there will always be people who lurk in dark places and force passersby to pay them tribute under threat of bodily harm. That doesn’t make property rights a “failed system” or personal rights “irrelevant.”

    You talk of corporeal – well, let’s talk corporeal. Who owns your soul? You may talk of your right to feed your soul as you desire, but is that truly your right? Or is it merely your ability? You cannot possess your soul because it is not a thing of tangible form or even a thing which we all can agree exists. What we can agree is that you possess your body. Your body exists; it can be quantified, and in that sense you “own” it. But when you give up your body, who owns the soul? It is not something you created and it is not something you can destroy. If the soul exists, it is not yours at all – yet, many would agree, it is the sum of your essence. You may spindle, fold and mutilate your body as you see fit, but this does not give you any such capability (or right) to do so with your soul.

    If you wish to scribble on you data, do feel free to do so. However, the data is not the thing you own. If your computer fails, can you not still have the data? This is not a paradigm that lends itself to old notions of property and ownership and your inability to discern this also vividly portrays the ignorance of your opinion. What is the essence of a car? Is it not transport? If your car fails or is stolen, can you still drive it to work the next day? Of course not – but your computer can be utterly destroyed and yet you still may possess its essence.

    Possession does not equate ownership. Even in the realm of the ‘real,” possession is only temporal and ownership merely a construct of that realm. You talk of an imagined ability to prevent such constructs, but I submit the vast history of man readily illustrates the futility of any such pursuit. Entire armies of men greater than you or I have been unable to overcome the basic facts of life in this corporeal realm; your insistence that you, somehow, hold such god like power only makes you to be a fool… a hypocritical fool.

  17. ACS says:
    February 22, 2006 at 7:37 pm

    PS:-

    Granted, it for a cause not quite as noble a cause as the civil rights movement in the mid part of the 20th century or the liberation of India from Great Brittan

    You got that right (and nice grammar and spelling by the way).

  18. Jim Powers says:
    February 22, 2006 at 11:10 pm

    Ok, who to respond to first, I’ll start with ACS:

    Well one of those statements is correct, probably the one you admit.

    I admit that both are correct: one is correct now (I am crazy) and one could be correct in the future (But it would work)

    The rise of Western Civilisation since the 16th century is directly related to the patent and to lesser extent copyright and trade mark systems. The system of Intellectual Property is, as one commentator put it, a pillar of a technologically forward society. Now I dont want to give a diatribe about why that statement is correct – safe to say – people will not publicise great ideas and expressions without some reward because the costs are prohibative. It is the reason why the Beatles or Windows or any other great product in history has been able to get into every individual home – because there was no identical ‘pirated’ product in competition.

    This is the same type of statement made by those who argue against “global warming” (I’m using this as a similitude, not to now open a debate on global warming): Since we do not have another Earth to act at a control, that is to say one without human beings, we cannot scientifically conclude that human activity is a significant contributor to global warming. What you are saying is that starting around the 16th century the nascent ideas of copyright and patent were developed. Coincidentally, there was a flowering of new ideas in the “western world” (mostly Europe). Now, I’m stuck in the converse position as the “global warming” argument above: I do not have a control Earth where in its 16th century copyrights and patents were not founded. This much I will admit, therefore, anything I say about a world without copyright laws is pure conjecture. However, I disagree about 1) the causal relationship you propose and 2) that we got things like “the Beatles” and Windows as a result.

    Regarding: 1) Causality
    History played out the way it played out and there is little to gain arguing about the potential and acute causes of events in history. For this example I’m sure we could have an endless pissing contest citing this research or that research to back up the various claims we would throw out at one another.

    Regarding: 2) Outcomes
    I think that it is safe to say that people were writing music, books, doing mathematics, making stupendous financial investments in stuff long before copyrights and patents came on to the scene. I would argue that the evidence shows that human beings would not have stopped doing this kind of activity had copyrights and patents not come along.

    Regarding the statement “people will not publicise great ideas and expressions without some reward because the costs are prohibative” is clearly false. A more correct statement is “some people will not publicize great ideas and expressions without some reward because the costs are prohibitive”, but some will. It is not clear to me that I should actually care about those who will only publicize great ideas with monetary reward. You may disagree, as I’m sure you do. But you see, the “people” that you are referring to want more than simple payment, because if that is all they want they could be paid for their time by some benefactor or a collection could be made for them. No, these people want the rules that regulate social discourse, laws, to be created in their honor. I have lost my conviction that these people are deserving of such laws.

    And there is another reason – respect. Do you not agree that if a person is willing to share thier creative effort with you then you should respect them by not altering thier work or not using thier work without thier permission? Do you believe that you have a right to something that they have spent thier valuable time working on?

    Let’s dissect these questions:

    Respect: yes, I would like to grant respect to others, generally. However, respect given from one person to another generally is earned, it is not a right. (The Law is written differently with how it accords “respect” to the citizenry subject to the Law because the Law is not a person, merely a set of rules meted out by people). Generally speaking I accord strangers polite respect for I know not how to act otherwise and I would like such treatment in return. Beyond that, when I actually have more information the degree and kind of respect I display can change.

    Do you not agree that if a person is willing to share thier creative effort with you then you should respect them by not altering thier work or not using thier work without thier permission?

    Short answer: No.

    Long answer: Not as you phrased it.

    What is confused here is that there is a layer of legality woven into your question that is inappropriate to the debate.

    Firstly: Sharing anything is not synonymous with any form of entitlement. This is to say “share what you want, how it is taken and how it is used by those who receive what you shared really isn’t ultimately up to you.”

    Secondly: Non-alteration. Hmmm. You really want me to open this up? Ok.

    – Once I take possession of “something” (to be explored in a moment) it really is mine to do with as I please, after all, that is “ownership” (for some appropriate definition of “ownership”). If, in the end, you are not able to apply a controlling influence over “something” as a manifestation of your “will” then it really cannot be considered “owned” now can it?

    In the end I’m not going to take your bait. If I get a book. The book was written by someone, probably copyrighted, but I can write all over it if I please. I can even rewrite it if I want. (I’m talking about taking a pen and actually writing over text in the book, I’m not talking about retyping the book). Is that disrespectful? Some would say yes, but generally no there really isn’t any thing wrong with that.

    Ok, so here’s another way to “alter” a work that doesn’t involve ink. When the work is inside my head I can play with it and alter it any way I want. More on this later.

    Thirdly: not using their work without permission. Corollary: I do not relinquish my rights simply because I’ve taken part in interacting with someone else’s shared work.

    Well, the ink writing example cited above would certainly be without their permission. Playing with the “shared” work in my head and drawing conclusions that the “author” of the shared work might be construed as without permission. Perhaps, if I were blind and plopped the book down on a scanner and via OCR had the book read to me might be without the author’s permission. No, so far I don’t see how the author’s permission plays into any of this.

    Although I can see what you are trying to accomplish with the question you posed, I believe that such a question has no one definitive answer.

    Civil Disobedience is an honoured phrase reserved for actions that are against laws that oppress individuals and groups. You consider the limitation on your right to enjoy the works of others, for free, as oppression. How warped you are.

    I’m only going to respond to this because you gall to phrase your statement this way.

    What group is being repressed? Let me start out by saying that I have not engaged in piracy of any kind, yet. Therefore, I consider myself among the group of law-abiding citizenry that would like to have legal access to copyrighted materials without out of the gate being treated like a criminal. How am I and others like me being treated like criminals out of the gate? DMCA and DRM along with various copyright extensions over he years is the simple answer. The classic “copyright cartel” (albeit I’m not defining this term, one that I have used more than once, perhaps someday I provide my definition) has been able to get on the books laws that make it illegal for me to do certain things with copyrighted materials I legitimately buy.

    DVDs – Can’t circumvent CSS without breaking the law (I run Linux and use DeCSS to play my DVDs). I don’t want a friggin’ licensed player, I want the DMCA repealed. I should be able to get a plastic disc that I payed good money for and drop it into my computer no questions asked.

    CDs – Although none of the DRM strategies that effect Windows and the Mac seem to effect Linux yet it is ridiculous to be treated like a criminal when you just dropped $14 for a CD only to find that it is going to try to stop you from playing it.

    Practically infinite lifetime copyrights – when the mouse is going to be threatened with public domain status Walt and Co. will just buy another copyright extension law. What does this mean to you and I? Practically unending lockup of stories and ideas mostly in the control of very few who profited considerably from the public domain not giving back their fair share.

    In the pipeline:

    Trusted Computer Platform (TCP) – Hardware supported DRM enabling the lock-down of ANYTHING the “copyright cartel’s” heart desires. This includes remote revocation of licenses. So, now I have a PC that I paid for, it is “mine” and some person out on the Internet get wind of something I’m doing they don’t like and *poof* I can’t watch a certain movie. Oh yeah, I tell you what I would be doing: copying the disc image to a server so I can watch it without needing the disc. But you see, that’s wrong.

    HDCP – Total end-to-end lock-down of video. So forget about making that VHS tape of movies so your kids can watch without destroying the disc (example direct for a L. Lessig speech).

    HD-DVD and Blue-Ray – The end of my video watching days and I’m not going to give in to the demand that I get a black box with more security than the NSA to watch a movie. All this security is supposed to thwart pirates, but it won’t but it will thwart me. Perhaps DVD Jon will crack this one too and I’ll be able to resume my mere criminal status.

    Eventually (towards the end of my lifetime, certainly in the lifetime of my children):

    The line between the inner world of our mind and the “net” will blur. The brain can and will be directly linked to the “outside” world. At which point one needs to ask the question: are copyright and patent laws going to stop at the skull? Probably not. For the ethereal world of the computer and the net are kin. If a line that pushes the legal constructs of patents and copyrights, which originated and are “reasonably” applicable to the world where physical laws apply but rapidly reduce to absurdity in places where physical laws cease to apply who is to say that YOUR thoughts do not violate somebody else’s copyright or patent?

    So, in short the oppressed group I identify are those people who are today legally engaged in the acquisition of copyrighted materials that are having both their fair use rights simply taken away and secondly being treated as a criminal by being subjected to technological controls that dictate terms of use, even if the only “alternate” uses that the user would engage in would be perfectly legal and socially acceptable.

    I don’t consider that to be warped. Perhaps you do, then we simply disagree.

    It is that kind of thinking that will return our society to where it was in the sixteenth century.

    This is a non sequitur, the 16th century was what it was because that is how far human beings had developed civilization to that point. Perhaps some (a very small amount) of pre-16th century thinking would do us good.

    ——————————————————————————
    Ok, now on to poptones

    I have a theory about you, of course I cannot prove this theory but I think that you are a troll paid by the RIAA or MPAA to keep an eye on L. Lessig’s blog to repress intelligent discussion about copyrights. If you aren’t in their pay I would suggest you seek out their employ.

    Your “feelings” are informed by ignorance, and the proof of my assertion is in that you are, despite repeated points made to illustrate this fact, unable to discern how these issues are completely intertwined.

    I think you analysis is a bit off Doc. So far my feelings on this matter check out. I’m in the clear. Your “points” have all been dispatched with prejudice.

    There will always be people who can counterfeit reserve notes, and there will always be people who lurk in dark places and force passersby to pay them tribute under threat of bodily harm. That doesn’t make property rights a “failed system” or personal rights “irrelevant.”

    Non sequitur.

    You talk of corporeal – well, let’s talk corporeal. Who owns your soul? You may talk of your right to feed your soul as you desire, but is that truly your right? Or is it merely your ability? You cannot possess your soul because it is not a thing of tangible form or even a thing which we all can agree exists. What we can agree is that you possess your body. Your body exists; it can be quantified, and in that sense you “own” it. But when you give up your body, who owns the soul? It is not something you created and it is not something you can destroy. If the soul exists, it is not yours at all – yet, many would agree, it is the sum of your essence. You may spindle, fold and mutilate your body as you see fit, but this does not give you any such capability (or right) to do so with your soul.

    Corporeal | Cor*po”re*al |
    (k^or*p=o”r-e*al), a. L.
    corporeus, fr. corpus body.
    Having a body; consisting of, or pertaining to, a material
    body or substance; material; — opposed to spiritual or
    immaterial.

    1) I’m an atheist, I have no soul. Neither do you in fact.

    2) I see you have picked up a book on philosophy. Then you should also note that it is a well established philosophical tenet that the notion of “ownership” has no meaningful definition. I certainly abide by that result having convinced myself of its unassailable truth.

    3) For “practical” reasons we create, conjure, or otherwise pull out of our ass some legal definition of “ownership” that is sufficiently “meaningful” (but ultimately not) to allow us to live in a shared space with limited resources. Viz.: “owning” houses, cars, etc. Generally, we can do a “reasonable”, but hardly perfect job of creating the legal definitions mostly because we tend to work well with things that have “boundaries” and obey physical laws.

    4) Legally we do an absolutely horrible job of defining any remotely reasonable definition of “ownership” for that which is ethereal. This is usually because there is no boundary. There really are no limits in the way ethereal things can be transmuted into other ethereal things of like “structure” as an example Algebraic groups. It is precisely for these reasons that I put forth my “drop copyrights” idea above. I stick to that proposal.

    Now that the preliminaries are out of the way: Since I am an atheist I need not address your blather about souls, spirits, etc. And since I’ve already put forth previously arrived at results that ownership is meaningless, then I would certainly agree that even ownership of one’s thoughts is meaningless and undefinable therefore copyrights and patents need to be dispensed with post-haste. Now, since the “post-haste” part of my previous statement is probably not going to come true in my lifetime I will first start with at least clipping something off: I’ve already said that I would like a repeal of the DMCA, a shortening of copyright terms and an expansion of “fair use” rights. I probably won’t even get that in my lifetime, but if I did then at least I made a positive contribution to mankind (others may disagree of course). I will have to leave efforts to further decrease the amount of institutional insanity to subsequent generations.

    If you wish to scribble on you data, do feel free to do so. However, the data is not the thing you own. If your computer fails, can you not still have the data? This is not a paradigm that lends itself to old notions of property and ownership and your inability to discern this also vividly portrays the ignorance of your opinion. What is the essence of a car? Is it not transport? If your car fails or is stolen, can you still drive it to work the next day? Of course not – but your computer can be utterly destroyed and yet you still may possess its essence.

    I had a friend of mine who once coined something he called the “agreement principle”. The general form of the “agreement principle” is this: The “heat” of an argument is inversely proportional to the “distance” of the opposing sides. So, the closer you are to actually agreeing with someone else the more heated the argument/discussion becomes.

    This statement shows that we agree, at least philosophically, more then disagree. But I would dispense with the Platonic essence stuff.

    As far as “data” in my computer (leaving aside discussions of “will” free or otherwise), generally, it is desirable that the data within “my” computer agree substantially with the mental model of what I think is inside my computer. That said, I as owner of the computer am final and supreme arbiter over what gets into my computer. Once in my computer I am sole arbiter of what transformations are to be applied on said data. Said in English: All I ask for is that I be allowed (by inclusion in the market place of “content” digestible by my computer) to legally come into ownership of copyrighted materials, that I can freely ACCESS on my computer and that I can use any way I see fit for my personal use.

    Possession does not equate ownership. Even in the realm of the ‘real,” possession is only temporal and ownership merely a construct of that realm. You talk of an imagined ability to prevent such constructs, but I submit the vast history of man readily illustrates the futility of any such pursuit. Entire armies of men greater than you or I have been unable to overcome the basic facts of life in this corporeal realm; your insistence that you, somehow, hold such god like power only makes you to be a fool… a hypocritical fool.

    I will repeat an absolutely meaningless philosophical, but potentially practical definition of physical ownership I mentioned before: In the small, I own something firstly if I can apply my will to control, either directly or indirectly, the behavior of some object in question, secondly, if “others” accept but do not prohibit me from doing the first.

    Armies, hypocrisy, foolishness and all other such lavish words you are willing, able, and apparently quite keen to throw at me aside, I return to where I first started:

    First: a halt to all expansion of copyright-based laws that are intended to make consumers of copyrighted materials criminals by default, or criminals as a result of “traditional” fair-uses of copyrighted materials.

    Second: an actual REDUCTION of the length of the copyright term. Personally I cannot see a rational argument for anything longer than 20 years.

    Third: an expansion of “fair-use” applications of copyrighted materials.

  19. poptones says:
    February 23, 2006 at 2:42 am

    There will always be people who can counterfeit reserve notes, and there will always be people who lurk in dark places and force passersby to pay them tribute under threat of bodily harm. That doesn’t make property rights a “failed system” or personal rights “irrelevant.”

    Non sequitur.

    wrong again. You made the connection in your own argument! If my response to that argument is a non sequitir it is your own fault for introducing it – but it is not a non sequitir – it is very much, in fact, “a sequitir.” Because no system is perfect this does not mean it lacks in all value. Money can be countereited, that’s why we have laws and officers to enforce those laws – a system that sustains a common currency of exchange. DRM can do the very same thing in the digital realm because it allows data to become “things” – to take on traits common the physical realm. That this can be does not mean it must be in every application – in a world of digitally protected, rights managed works there still need be no laws requiring their use. Just as it is your right to give a dollar to the panhandler it is your right to give away your creative output. Both have value and it is not your right to decide for others which of these is greater.

    You are welcome to think whatever you please of me. Believing me to be an industry shill would be completely consistent with most everything else you have espoused in this thread – that is, utterly wrong. “Poptones” has been a presence on the net for many years now and “his” record easily located via google. I take pride in being combative online and challenging dogma.. I also take pride in the contributions I have made to the creative commons.The difference between you and I would be that I have respect for both the creative and real world needs of others.

    I need not even take a second to address all your other attempts at dodging my previous (quite valid) rebuttals of your ignorant tirade, but I simply cannot allow this one opportunity to pass by…

    In the small, I own something firstly if I can apply my will to control, either directly or indirectly, the behavior of some object in question, secondly, if “others” accept but do not prohibit me from doing the first.

    Which “others?” This is how ownership works. The benefits to all mankind are potentially much greater with a system of ownership than without – this is why we have them. “Others” are already prohibiting you from making certain uses of intellectual works, you are simply ignoring half your own alleged ideals because it potentially interferes with your ability to remix mariah carey.

    Your notions of ownership are antiquated, obsolete, and arguably immoral – which all fits nicely with your like rejection of respect for creativity and your inability to discern knowledge from information. DRM does not infringe upon your right to learn and to think and to create; it does not prevent you from learning to speak russian, or algebra, or even from making music, because it does not (and can not) prevent you from collecting information on these subjects and applying it to your own personal growth. It may, however, prevent you from making use of some embodiments of knowledge and talent in that pursuit – those embodiments produced by individuals who do not submit to your personal beliefs. Sorry, but just as you cannot force me to teach you at the point of a dagger, this has always been a fundamental human right. To reject this agreement is to put yourself in the company of every tyrant in history.

    Those glossy pop culture productions that are the monkey on your back would not be possible in a society without ownership simply because there would be no means of pooling the talents and creativity to create them while allowing the people creating them to eat. There would certainly be songs, but their variety would not be so vast nor their production so polished without a parallel structure of funding. Even linux itself would not be possible without these systems, as linux itself was created by individuals volunteering their free time and knowledge. Those people had to eat, and to eat they either had to sell a portion of their time to someone else or they would have no free time at all because they would be too busy weeding the garden, fishing and hunting – gathering the food they need to sustain themselves and their kin – to waste their precious time tinkering with such trivialities.

    There is no “control” earth but there is ample proof of this right now in asia; the korean film industry has boomed in recent years in direct correlation with an increasing awareness of, and enforcement of, IP rights in that nation. Big budget films like Natual City would not be possible if producers could not fund them and recoup their investment. Before IP rights enforcement the output of the Korean film industry was mostly low budget Bruce Lee like projects, now Korea is one of the fastest growing competitors to Hollywood. China is in similar position – a decade ago films like Hero were an anomaly, now they are almost commonplace. The money to create these productions did not arise out of thin air – it came from western investors… an ownership society.

    If you demand the ability to make transformative use of what goes into your computer – your “brain” – then stop feeding it junk food. Seek out the works of those who respect your demands; reward them and encourage them to produce more. Rejecting them offhand while usurping the rights of those who do not share your dogmatic POV is a slap in the face to them and a betrayal of the very values you hypocritically claim as your own.

  20. Jim Powers says:
    February 23, 2006 at 5:22 am

    poptones,

    You are a funny person, but I think you have a bit of froth around your mouth.

    I’ll gladly respond later, but I’ll give the short version here: I disagree with you on most of the of your last post. Both in its characterizations of me and the “substance” of your response.

    Guns, at dawn, 40 paces.

  21. nate says:
    February 23, 2006 at 7:36 am

    ACS (quoting Jim Powers) writes:
    >> because it remains an illegal act every time I play a DVD on my
    >> Linux-based computers
    >
    > Nate, I think he is referring to the software used to play DVD’s on
    > Linux as being illegal.

    My understanding, which I’d love to have corrected by someone with greater legal knowledge, is that within the US (where I am) the DeCSS code is illegal, and additionally each use of that code to playof a DVD is also illegal as a violation of the DMCA. There is an argument that the both of these are actually legal under the reverse engineering exceptions, but I don’t think this has been upheld by any court.

    It’s also my understanding (correction appreciated) that the modifying your legally owned DVD player to play a legally owned DVD from a different ‘region’ is also prohibited in the US by the DMCA. In Australia, I believe you have the opposite law, and this modification is explicitly _permitted_ under fair trade law.

    So I’m still wondering (and I appreciate your response, JB) whether there are any Linux users out there (poptones?) who believe that the use of DeCSS is illegal and therefore avoid playing DVD’s on Linux for moral reasons? Or do believe that what they are doing is illegal but morally correct, much in the way that Jim Powers is proposing civil disobedience with regard to copyright laws?

    –nate

  22. poptones says:
    February 23, 2006 at 9:31 am

    My understanding, which I’d love to have corrected by someone with greater legal knowledge, is that within the US (where I am) the DeCSS code is illegal, and additionally each use of that code to playof a DVD is also illegal as a violation of the DMCA.

    It is. But in the context of an individual using decss for his or her own personal enjoyment in his or her home, enforcement of this is essentially impossible. I too would welcome a well crafted rebuttal from a qualified legal counselor, but based upon past exchanges with other legal professionals I would say this qualifies as de minimis infringement – that is, essentially akin to copying a record to tape for one’s personal enjoyment, sharing the tape with a friend, or a bunch of teens gathering in one’s bedroom to listen to music together.

    However, when one infringes copyright by applying decsss to a dvd in order to rip for publication, say, via torrents, the DMCA prohibitions against such technology provide one more legal bullet to charge against the infringer – much as, no matter what else they can find on you, at minimum the government, if determined, will always find a way to challenge the well funded criminal for money laundering or tax evasion.

    The DMCA lends other, previously unseen, teeth to copyright matters in that it compounds civil offenses to matters of federal violations and puts pressures upon matters of free speech and research, but that doesn’t make the entire body of code “bad.” Protecting the value of encrypted works will, in the very short term, be readily seen as akin to protecting the value of federal currency or the more recently established right to “privacy.”

    By the way, to answer a question long ago posed in this thread: yes, I do in fact know people who use linux and who do not use decss. My best friend, in fact, a professor at the local state uniy, does not make use of these technologies; he has a dvd player to play dvds and doesn’t even download torrents of tv shows because he is respectful of the copyrights. So yes, there are people for whom this is relevant – not as a matter of law or of penalies, but of ethic.

  23. Nonameplease says:
    February 23, 2006 at 1:04 pm

    My understanding, which I’d love to have corrected by someone with greater legal knowledge, is that within the US (where I am) the DeCSS code is illegal, and additionally each use of that code to playof a DVD is also illegal as a violation of the DMCA.
    (nate)
    It is. But in the context of an individual using decss for his or her own personal enjoyment in his or her home, enforcement of this is essentially impossible. I too would welcome a well crafted rebuttal from a qualified legal counselor, but based upon past exchanges with other legal professionals I would say this qualifies as de minimis infringement – that is, essentially akin to copying a record to tape for one’s personal enjoyment, sharing the tape with a friend, or a bunch of teens gathering in one’s bedroom to listen to music together.
    (poptones)

    Hello all. Very interesting posts here (although the polemic nature of the conversation does seem to get personal at times, but then hey…we’re all human after all).

    I just thought I would chip in my two cents. I must say that I have a serious concern with the above statement made by poptones, namely that “But in the context of an individual using decss for his or her own personal enjoyment in his or her home, enforcement of this is essentially impossible”. Because it seems to me that Jim Powers does make a good point here….namely that such surveillance and control is coming (if the logic of the DMCA, TCIP and other content controls are followed to their logical conclusion)

    Now I’m a big supporter of the second amendment… “being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” And lately, I’ve started to think that there is not much difference (as I once thought there was) between my right to bear arms and my right to bear communication devices (cell phone, P2P technology, laptop, etc.) (The amendment is a kind of technology right when I think about it….)

    Anyways, I’m not very excited about my PDA, laptop, cell phone, body-enhancing-device to come….being turned into a Martha Stewart ankle bracelet. Technology that I cannot control, but controls me. I want to bear my own arms and technology, thank you very much. I don’t want to live in a surveillance /1984-like state.

    Now just a quick disclaimer…I have a great deal of sympathy (support really) for the artist, creative persona, etc. who by themselves or in a collaborative group puts something out in the world and has it changed or used by others in ways that they did not intend. Since I do a lot of video and filming in my line of work, it hurts to watch images that I have filmed being used by others in ways that I did not intend (example: I filmed a series of interviews with some women who are particularly vulnerable, socially and economically, and their interviews were taken out of context by a news organization to support a political agenda of someone who distorted what they were saying) I find this particularly upsetting.

    What I’m not sure about is….is whether my complete control and ownership of this video would necessarily solve the problem of misuse. And would such control be a good thing? I’m not sure…should I or they be THE FINAL WORD on how those events can be understood and portrayed? As an artist of his medium, I can sometimes be a downright arrogant guy when it comes to what I create….but do I have the right to silence those who see my work differently than I do, and wish to share that alternative vision with others?…and perhaps more fundamentally, am I stealing from the women who I interviewed? Should they be the “property owners” of their image, voice and ideas?

  24. poptones says:
    February 23, 2006 at 4:24 pm

    Complete control or ownership of video does not prevent free speech. At the most extreme all you need do is point a hi8 camera at the screen and rip that tape to your machine, or even construct a cracked machine (provided, of course, you are sufficiently informed to do so and determined enough). However, DRM CAN prevent you from easily making an exact copy, however, or one that can be remixed or repurposed. But even that doesn’t matter – in the context of free speech you can always quote the work verbally or recreate it descriptively. DRM cannot prevent the distribution of information, only the repurposing or redistribution of specific embodiments of knowledge.

    I cannot quote for you some the work of Disney, for example, even now. Decades ago Disney made a movie called Song of the South that many object to as having racist overtones. Disney pulled this film from the market and I am unaware of any copies in circulation. That doesn’t prevent me from describing the film, however, or telling you about my experiences viewing it when I was a child and it was still appearing in theatres. Nor did its unavailability on the market prevent Saturday Night Live from creating a vivid parody of the work in its “Uncle Jemima” malt liquor ad. This is the eultimate form of rights management (complete refusal to publish) and yet it has not, in any way, prevented the free expression of others – because once you have shared information there is no effective means of preventing its spread.

    This is the crux of DRM: before things were digital there was a more obvious barrier between information and knowledge. Digital technology blurs that line because it allows specific embodiments of knowledge to spread nearly as easily and completely as infromation itself. Allowing those who choose to rebuild that barrier on their works as it suits them still will not prevent the dissemination of information even though it allows them to reclaim the territory lost that stands in distance between information and knowledge.

    But DRM is not just about protecting certain embodiments of knowledge. It also allows protecting cvertain forms of data, and the laws protecting its reuse in that scope can likewise protect the rights and privacy of individuals. Data “leaks” are a real problem right now, and that’s largely because companies construct vast warehouses of information that present easy targets to attack. A system of meaningful and trustworthy DRM could allow, for example, the establishment of a digital currency. And once you have that there is no need to depend on credit companies, banks, and amazon.com to store that vulnerable information “for your convenience” – you can simply fill up the virtual ATM that lives inside your machine with currency which can be exchanged online exactly as cash. When you have that ability, what need does amazon have of your credit information?

    None at all. Nor would they have need to store your other information because you can safely store it in your own machine and exchange it with others through established secure protocols. In that way ecommerce can be transacted in a cash based society – a structure where every individual controls their own information and laws and protocols help them protect it. In that scope an attacker would be relegated to virtual mugger or bank robber – either he picks off your neighbor and you one by one, or he contnues to attack those warehouses. But in that way amazon’s problem are not compounded into your problem and 50,000 others.

    That same technology could likewise enable me or you to create our own currency. just as you may now create a painting that has unique value and sell it, so to you might create unique digital works and exchange them with others who see value in them. They could be artistic in nature but need not be – they need only be unique. This could be a boon to criminals as well – for example, it could allow them to work within online communities laundering money. But at some point it would require them to deposit that money into the digital realm, and at that point they would still become vulnerable… just as they are now always and have been.

    This is only one example of the way in which DRM may represent an increase in the ability of the individual to secure their privacy online. In a peer to peer model of exchange, outside the tariffs and tracking the online banking agencies presently exert, via their ownership of virtually all channels of online commerce, over every single transaction of even the smallest bit of monetary value, individuals may transact business a much more democratized environment.

    And decss is applicable to only one specific technology: dvds. the next generation of DVDs will not be vulnerable to decss because they will not use css, they will use stronger encryption and watermarking and an enirely different security protocol. The works protected by css will never be individually traceable, therefore they will never be able to track you in the way that you so fear.

    However, you do not have the immunity you seem to imagine. If you fear these protocols of control you need to get off the grid NOW, because your IP address can pin you down wherever you are in the world. If you are on a laptop and jacking into open wireless gateways in the area you can still be pinned down by a determined attacker because the point at which you connect will have access to the unique ID of the network adapter in your computer AND to other characteristics that are roughly unique to each machine. If you piss off the wrong people, eventually they WILL find you. Nothing about DRM, TCPA, the DTLA or DMCA will change this – it’s built into the system and has been from the beginning.

  25. ACS says:
    February 23, 2006 at 4:30 pm

    To all

    I believe that there is a major missapprehension as to the nature of copyright licensing in this thread, which I hope I can clear up now.

    A copyright licence is in essence a permission or consent from the author to a person exercising the right in copyright. It forms the consideration for a promise or contract.

    Example – You may only use my work on condition that you (a) only use this work on a CSS area 1 device (b) do not reproduce this work (c) do not communicate this work to the public for reward etc etc etc.

    If you take the work you are bound in contract. You are also limited to the rights granted to you. If you act beyond those rights you are infringing “reserved rights” in the copyright.

    I hope that gives you a platform to review these issues under law. Please note that this is an approximation of what the law states and is not my own personal beliefs about how the law should work.

    To Jim Powers

    Regarding the statement “people will not publicise great ideas and expressions without some reward because the costs are prohibative” is clearly false. A more correct statement is “some people will not publicize great ideas and expressions without some reward because the costs are prohibitive”, but some will. It is not clear to me that I should actually care about those who will only publicize great ideas with monetary reward.

    I dont think you quite understood what was being conveyed. Simply put – if Sony could not protect the works of its artists then why would it bother selling CD’s. Or even worse, if artists could not protect thier works then why would Sony bother paying them. I know you get the picture –

    An individual cannot promote thier works world wide so they rely on companies that can. If there was no copyright then those companies would just steal thier works – You have noted that SOny still has presence in places like Ukraine where piracy is massive. SO I guess it is the artist who suffers and not the record company if we were to adopt piracy. Do you not agree?

    Generally speaking I accord strangers polite respect for I know not how to act otherwise and I would like such treatment in return. Beyond that, when I actually have more information the degree and kind of respect I display can change.

    So you hear an artists works and the degree of respect changes to a total disregard for thier wishes?

    Do you not agree that if a person is willing to share thier creative effort with you then you should respect them by not altering thier work or not using thier work without thier permission?

    Short answer: No.

    Long answer: Not as you phrased it.

    What is confused here is that there is a layer of legality woven into your question that is inappropriate to the debate.

    I would hate to think that legal arguments are used in consideration of copyright. I would refer to Professor Posner’s example for the reasons for property rights:- imagine a farmer in his field, he tills the soil, plants the seed and carefully grows the crops. On the night before harvest someone comes along and takes all of his crops. Because there are no property rights anyone can enter his land, anyone can take his goods and he sees no reward. The same is true of intellectual property. If a person cannot protect thier works then anyone could come along and use them – it means that a person cannot devote themselves to (spend thier time sowing the crop) thier art form. As a result all the popular bands would be obliterated because they would have to get jobs instead of playing music or performing.

    Im sure you now agree that IP is required….

    finally
    What group is being repressed?

    Artists

  26. poptones says:
    February 23, 2006 at 7:34 pm

    You know, ACS, until I read the last two words of your post I had never even considered something:

    China and the FSU have tradictionally had very weak property rights and nearly no system of IP enforcement. Can it be coincidence that these regimes also have a vast history of imprisoning dissidents and persecuting artists?

    Gee, I wonder if those weak IP laws are not coincidence at all. Weaken physical property laws and the proletariate can still eat, but weaken IP laws and you make it nearly impossible for those artists to do so…

  27. Nonameplease says:
    February 23, 2006 at 9:28 pm

    What about all the artists who can’t eat now?

    Correct me if I’m wrong (I am no economist, after all) but I thought that in a capitalist, market economy that there were two basic ways to make money: increase demand or reduce supply or both.
    It seems to me that many of the content or cultural industries out there (the companies that market and sell what people like me make) have an inherint interest in reducing supply and stimulating demand of a select few that they control.

    I think this might reduce the number of ideas out in the public sphere, not enhance it.

    I agree that surveillance is already a problem and possibility poptones…but you seem to be saying that surveillance needs to be perfect before we can be free, that we should all just turn in our arms to the state (which is what the DRM, TCPA, the DTLA or DMCA does, since the state is ultimately the means of enforcement) so that everyone can then be safe…and…while I’m not the brightest of guys….that just doen’t seem to add up to me.

    I think I prefer to have freedom

  28. Jim Powers says:
    February 23, 2006 at 10:47 pm

    ACS,

    Thanks for the comments, here are my responses:

    A copyright licence is in essence a permission or consent from the author to a person exercising the right in copyright. It forms the consideration for a promise or contract.

    Example – You may only use my work on condition that you (a) only use this work on a CSS area 1 device (b) do not reproduce this work (c) do not communicate this work to the public for reward etc etc etc.

    If you take the work you are bound in contract. You are also limited to the rights granted to you. If you act beyond those rights you are infringing “reserved rights” in the copyright.

    I hope that gives you a platform to review these issues under law. Please note that this is an approximation of what the law states and is not my own personal beliefs about how the law should work.

    But I have not entered into a contract when I acquire most copyrighted materials I encounter 99% of the time. There are no terms presented, and so signature or explicit acknowledgment of acceptance of terms. You buy a CD or a DVD there is no contract on the outside of the box, unlike software EULA click-through licenses. There are no terms spelled out on the outside of a book (except for a few that do come shrink-wrapped in literal plastic license) or the outside of the New York Times. So generally no, I don’t view nor are there legal precedents that apply contract law in these examples. The items in question are simply protected via copyright law.

    Now, if I were presented with such terms I would have to think about whether or not I would except such terms. The DMCA can produce an implied contract in these cases because the protection of a copyrighted work with some sort of DRM implies that you will only used products licensed to access the DRM encumbered work. But even this is not always the case: a software DVD player may ask you to agree to the license terms but picking up a DVD player at Best Buy presents you with no such license agreement. In the latter case I guess that is it basically taken on faith that people will not open up and hack away at the innards of the DVD player.

    I dont think you quite understood what was being conveyed. Simply put – if Sony could not protect the works of its artists then why would it bother selling CD’s. Or even worse, if artists could not protect thier works then why would Sony bother paying them. I know you get the picture –

    Yes, I do get the picture. My little “bombshell” mentioned earlier in the thread results from: I don’t know if I like the picture, in fact, I am beginning to not like the picture at all.

    I do, I really do (I’m sure some will say otherwise), understand the point and nature of copyright. In making a statement like: dissolve the copyright system, I am also making a statement with regard to the fundamental nature of businesses like Sony and their continued existence (at least in the CD sales business) or not. It should be clear after playing around with the notion of a copyright-less world in your head that the business an economic landscape would be very different that what it is today. I am not saying “get rid of copyrights and maintain the status quo”. As to whether such a business and economic landscape would be “better” or “worse” by some set of arbitrary measures it will be both “better” and “worse”, it will certainly be different. The important difference that I am after is the freedom (and liberty) of information. Yes, one can wax on about that new forms of information “hoarding” will emerge. That is all conjecture, but something resulting in hoarding will happen. The fundamental principle I would seek would be to lower the barrier to information sharing to zero while making it pretty expensive to hoard information. If there is no copyright protection then even hoarded information can be independently replicated with impunity. So those who hoard information in this theoretical world would be placing very big bets that the information they exploit for economic advantage does not get out into the wild. If the bet fails then do do their plans.

    An individual cannot promote thier works world wide so they rely on companies that can. If there was no copyright then those companies would just steal thier works – You have noted that SOny still has presence in places like Ukraine where piracy is massive. SO I guess it is the artist who suffers and not the record company if we were to adopt piracy. Do you not agree?

    Firstly, to be fair, I think poptones make the comment about the Ukraine, not me but I agreed, generally, with his statement.

    Under the current system of copyright yes, I agree that entities, such as artists, that derive significant income from the sale of digital copies of works can be hurt when this system breaks down, such as through piracy.

    I will restate what I have already said before: If I were to go after organizations that I deem are directly responsible for producing and adversarial relationship between them and the general consumer by getting laws enacted and utilizing technical means to impinge the rights of consumers, then I would certainly do my best to debase the value of the relationship of an artist with that organization. One way of doing that is to reduce the profitability of that relationship. Therefore, I return to my original premise that pain and suffering on the part of the artist would be a necessary aspect of any financial attack on the organization that represents them by selling copies of their works which bring about a reduction in the rights of the consumer.

    Now, such action may not have to happen if the artist can find other ways, outside of their relationship with the said organization to engage the market. If the said artist engages the market in a way acceptable to me, which is to say that their engagement with the consumer does not impinge the rights of the consumer then I, personally, would see no reason to take punitive action towards the artist.

    Another outcome is that the organization can change their ways as well so as to cease being adversarial and rights-tromping. Then all is well.

    I know that your question and points here are in regard to my “punish by piracy” idea, but, it can also be related to my more radical idea of dissolving copyright. Digital copies of things have value asymptotic to zero. Embrace this by ending economic practices that rely on selling copies of stuff as it is intrinsically debased in the digital world. Now, poptones is going to have a field day with this, but I could care less: he and I have learned all we are ever going to learn from each other and we are simply going to have to agree to disagree.

    So you hear an artists works and the degree of respect changes to a total disregard for thier wishes?

    Well, if I’m hearing and/or seeing an artists work I am interacting with a product, not the producer of the product. Generally speaking if I don’t like something I forget about it and move on. If I like it, and it is possible to buy a copy I may do so. Once I own the copy I may wish to re-encode the copy in some other way that is worthwhile to me. The artist’s wishes at that point are irrelevant, as owner of the copy of the work I am the sole arbiter of what happens to that copy. I recognize no other authority that overrides this. I think what I do with a copy of an artists work, for personal use, that I legally own is symmetrically irrelevant to the artist. The artist produced a product of sufficient worth that I coughed up some dough to acquire ownership of a copy, legal-like, end of story. If the law does not support what I just said then I would seek to have the law changed to comply with my wishes in this regard.

    I would hate to think that legal arguments are used in consideration of copyright. I would refer to Professor Posner’s example for the reasons for property rights:- imagine a farmer in his field, he tills the soil, plants the seed and carefully grows the crops. On the night before harvest someone comes along and takes all of his crops. Because there are no property rights anyone can enter his land, anyone can take his goods and he sees no reward. The same is true of intellectual property. If a person cannot protect thier works then anyone could come along and use them – it means that a person cannot devote themselves to (spend thier time sowing the crop) thier art form. As a result all the popular bands would be obliterated because they would have to get jobs instead of playing music or performing.

    Im sure you now agree that IP is required…

    No I don’t agree, not in the slightest: steal crops it is gone from where it was and is now some where else. Direct result of physical laws.

    Make a copy of a digital file: Now there are two files in both places. Not subject to physical laws.

    This is where I’m going to invoke the “gotta except” rule. This is how things like computers and the human brain work: we keep making copies of stuff. This is the nature of the beast. One has to work unbelievably hard (in the end infinitely hard) to make the world of computers (and eventually the human brain) work like the stuff we can hold in our hand. you can either accept this and we can move on or I’m going to be forced to do this every time.

    finally
    What group is being repressed

    Consumers.

  29. poptones says:
    February 23, 2006 at 11:28 pm

    What about all the artists who can’t eat now?
    .
    Correct me if I’m wrong (I am no economist, after all) but I thought that in a capitalist, market economy that there were two basic ways to make money: increase demand or reduce supply or both.

    You’re wrong. Entertainment is not a consumable good. You cannot strangle the supply of creative works with more or less publication – all you can do is tip the balance of popularity of certain works. And doing that, as you can plainly see, means more speech. That old school publishers presently control the mainstream media gives them advantage in this, yet all their control could not squash the popularity of many artists (and even that damn frog covering “Axel F” that was on everyone’s ringtone for a while).

    By the way, Britain is now much more “wired” than us with broadband and so I think it no coincidence not one, but several “hits” in that nation have arisen purely from internet memes.

    It seems to me that many of the content or cultural industries out there (the companies that market and sell what people like me make) have an inherint interest in reducing supply and stimulating demand of a select few that they control.

    They cannot reduce supply, they can only meet speech with more speech. We now have mainstream pop bands being sprung from myspace communities. You think the mainstream media is going to pass them by? I know several artists now who have been making very comfortable livings and the media companies wish they could ensare them.

    I think this might reduce the number of ideas out in the public sphere, not enhance it.

    More speech equals fewer “ideas?”

    Only in Hollywood.

    …you seem to be saying that surveillance needs to be perfect before we can be free

    Take of fthe tinnfoil hat, reoberta – I said nothing about survellance. But since you bring it up – do you use crypottgraphy? Offshore proxies servers and secure tunnels? If so, how do you pay for them and how do you connect to them?

    DRM has absolutely nothing to do with survellance. It’s completely the opposite, in fact – at present every single onliune transaction you make is recorded and directly linked in some way to your credit history. If there were drug dealers on the internet it would be impossible to buy ther wares without being found out, since there would be no way of paying them that did not rely entirely upon passing data through servers controlled by “the man” you seem to fear.

    The whole point I am making with DRM is that it would allow us to get beyond that model. There would still need to be money exchangers in order for us to move cash from our pockets into the digital realm, but once that cash was there it could be circulated entirely outside the regulation or monitoring of governments.

    The system you have now is the one you most fear. DRM is the only technology that could allow you to escape that prison. You seem to be saying ou’d rather roll over and go back to sleep in your cell because the safety of your enclosed cot is more comfortable to you than the social restrictions and responsibilities of freedom.

    Jim, I’m not being trite or intentionally malicious when I say you give yourself far, far too much credit. I have learned nothing from you, for your arguments were long ago voiced and thoroughly squashed even by such folks as our kind host, the professor. It’s sad, really, you cannot fathom just how completely wrong you are about your imaginary “rights” in this world. Your arguments remind me of an angst riddled high schooler, annoyed that ‘the man” has finally arrived to remove him from his free ride on the corporate music machine.

    Make a copy of a digital file: Now there are two files in both places. Not subject to physical laws.

    utterly wrong. Now there are two files in two places – what if the value fo the file depends on it remaining one file in one place?

    It is no more your right to dictate the evolution of technology than to steal your fixes from your oppressor. Stop trying to blame the world for your problems living in it and get off the crack.

  30. Jim Powers says:
    February 24, 2006 at 7:40 am

    Jim, I’m not being trite or intentionally malicious when I say you give yourself far, far too much credit. I have learned nothing from you, for your arguments were long ago voiced and thoroughly squashed even by such folks as our kind host, the professor. It’s sad, really, you cannot fathom just how completely wrong you are about your imaginary “rights” in this world. Your arguments remind me of an angst riddled high schooler, annoyed that ‘the man” has finally arrived to remove him from his free ride on the corporate music machine.

    poptones, the issue is exactly those “imaginary” rights you speak of: I want them to become real rights. I am seeking a change in the law that recognizes the rights I want as valid and worth protecting. I’m not swayed by arguments of authority. If even our host has dispatched my ideas to his satisfaction is of no consequence to me. Ultimately, I make no distinction between the groups “artists” or “producers” and “consumers”: we are all equally capable of both producing and consuming. What I want is very simple to state: if someone produces something and I am able to legally obtain a copy of that thing then I retain all my freedoms to use that copy any way I see fit for my personal use. In this way I see the feedback loop that energizes and inspires artists and and people to produce new products we can all share. In the context of a world where copyright exists then the loop has to go: producer->consumer->(internal personal use of the copyrighted material)->consumer producing new non-copyrighted work or produces new work using copyrighted work with permission. I would like this loop to be easier to execute by removing copyright altogether but I will leave the dismantlement of the copyright system to subsequent generations. I will seek the modest goals I’ve stated elsewhere.

    If Professor Lessig or you or others disagree, that is their right sir. It has no bearing on the fact that I still want to retain my freedoms to use copies of copyrighted works for personal use any way I deem worthwhile. I advocate this position to other as well, as you advocate yours and the Professor his.

    I did not start out calling you a hypocrite or fool, and now: Your arguments remind me of an angst riddled high schooler, annoyed that “the man” has finally arrived to remove him from his free ride on the corporate music machine. yet at every opportunity you have taken pains to level such epithets at me. You don’t know me from jack, yet you act as if you do. You have tried to put me down and shut me up by calling my ideas bullshit and others have been reduced to calling me an ass. All of these are your and others prerogative but in the end they are intimidation tactics intended to get me to see the light and fall in line. It is not working.

    It is you who feels comfortable bantering about the words like “right” and “wrong”, I do not feel these words really carry all that much meaning so I try to refrain from using them or will use them in quotes because they are non-constructive terms that are likely to get their user in trouble. We are not talking about mathematical proofs here using precise language that can be recursively traced back to a set of axioms generally agreed to be true. But again you wield the word “wrong” with some satisfaction towards me, can’t say I understand why, but it is not having the effect you seek.

    utterly wrong. Now there are two files in two places – what if the value fo the file depends on it remaining one file in one place?

    Value is in the eye of the beholder. There can be value for a file in one place or two or many. I don’t see this going anywhere.

    It is no more your right to dictate the evolution of technology than to steal your fixes from your oppressor. Stop trying to blame the world for your problems living in it and get off the crack.

    Wait, let me first take a toke on this pipe… There much better.

    Again, I will reserve whatever actions I deem fit to accomplish the goals I have stated elsewhere in this thread to my satisfaction. Where I “blame” others I seek change. I do hold “others” accountable for engaging in actions that directly hurt me and the public at large. The price we pay is in the erosion of, at the very least, our fair use rights. The “others” can choose to stop doing these hurtful actions, I would be satisfied, but these “others” seem to want to ratchet-up their controls. I resist that and seek ways to punish such action.

    As far as dictating evolution of technology, etc… The only terms I require of technology is that once you acquire a piece of technology that you retain the right to use that technology any way you see fit (I think that you are seeing the same objectionable pattern over and over). So, I would be willing to pursue creating a legal environment that supports this. As an example: there has been recent public talk and legal maneuverings around ISPs tiering the Internet. The ISP’s point of view is that they need this to compete, but so far lawmakers are not buying this and our host has already weighed in quite heavily against this. I support this view. It most certainly a dictation through regulation issue but I see it as necessary to ensure greater freedoms.

  31. Nonameplease says:
    February 24, 2006 at 9:13 am

    Entertainment is not a consumable good. You cannot strangle the supply of creative works with more or less publication – all you can do is tip the balance of popularity of certain works. And doing that, as you can plainly see, means more speech.
    (poptones)

    poptones: how expensive is free speech then? Doesn’t sound free to me. Isn’t that that what has been wrong with so many news and media outlets…and is being challanged today?

    I know from personal experience that you can supress creative works…you can supress their means of distribution…which is exactly what the old cultural industries of the twentieth century are attempting to do when they shut down P2P.

    And Powers makes a very important point when he says that today the consumer, creator and distributor have colapsed into a sigularity…this is what has the cultural idustrialists so worried…they are the middle men of culture and they know it.
    And we know what eventually happens to middle men..don’t we…

    So the middle men of culture need to use the state to protect their buisness model…and trample my right to bear the technological arms of the 21st century citizen.

  32. poptones says:
    February 24, 2006 at 10:28 am

    I know from personal experience that you can supress creative works…you can supress their means of distribution

    Really? Usenet is decades old and continues to grow by gigabytes of traffic every single month. The web is ever expanding, and torrents now, by many estimates, account for a third or more of all traffic. There are more publicly accessible websites hosting high bandwidth media content FREE OF CHARGE than ever.

    Methinks you’ve been at Jim’s crack pipe… just where, exactly, are these channels of distribution being shut down? Even if a site gets removed from the web the content may still roam free. Meanwhile, I’ve been a regular visitor to Magnatune and CD baby I’ve never seen an artist squashed by the man – even artists who post some of their work at these places who also have major label contracts.

    Paranoia, willdestrouya…

    And Powers makes a very important point when he says that today the consumer, creator and distributor have colapsed into a sigularity

    It’s irrelevant. Copyright protects everyone equally. If you want to be part of a community where everyone can take everyone else’s work and do absolutely anything with it, no one is holding you back. That doesn’t mean any of you have the right to commandeer the works of those who disagree with you. We all have the same rights to defend as we see fit. If I want to plant a pick it yourself tomato garden on my front lawn and hang out a “hlp yourself” sign it’s not your place to object, but it’s also not your place to “help yourself” to the produce at the local retailer when the neighbors have made off with your entire cache and you need to restock.

    So the middle men of culture need to use the state to protect their buisness model…and trample my right to bear the technological arms of the 21st century citizen.

    Sorry, but no matter how many times you attempt this rhetorical construct it still comes off trite and laughably overblown. Who, exactly, has come to confiscate your computer? Or your software? If I am selling something and then decide not to sell it anymore, is that “the man taking away your shit?” No, it’s me not selling something. Get over yourself.

    I find it doubly ironic that those of you who seem to believe you believe in free expression really do not at all. Encryption is speech, yet you seem unable to respect the rights of those who would speak it.

  33. Nonameplease says:
    February 24, 2006 at 10:39 am

    Really? Usenet is decades old and continues to grow by gigabytes of traffic every single month. The web is ever expanding, and torrents now, by many estimates, account for a third or more of all traffic. There are more publicly accessible websites hosting high bandwidth media content FREE OF CHARGE than ever.
    (poptones)

    Indeed, and here is the response of the middle men of culture (today, Feb. 24, 2006) is…

    MPAA Files Lawsuits Targeting Major Torrent Sites
    http://www.slyck.com/news.php?story=1106

    paranoia..no, I’m a realist.

  34. poptones says:
    February 24, 2006 at 10:41 am

    What I want is very simple to state: if someone produces something and I am able to legally obtain a copy of that thing then I retain all my freedoms to use that copy any way I see fit for my personal use.

    Bullshit. There is that unspoken caveat “unless they make it where I cannot do what I want, then I don’t give a shit about the law.” You have said this yourself many times even in this single thread.

    If you obtain my encrypted work legally, then you have agreed to play my work back upon devices designed to decrypt it. it doesn’t matter if you had to click through a license because this is the fucking law and, according to your own statements, you are bound to follow it. That means if you are stupid enough to buy a Blu Ray from me, knowing full well it will be encrypted simply because I am a Megasonic Hollywood Studios, and then find yourself unable to play it back on your computer because you refuse to equip your computer with the proper devices, . You knew the rules the day you plunked down the cash, and you are obliged to follow the law.

    What you have actually advocated is that it is your “right” to violate that trust and any laws applying to it simply because you want to. Well, I “want” to be able to walk into my local bank and walk out with whatever currency I need for the day, too… that and five bucks will get you a cup of coffee at starbucks.

    This is not just about free madonna. Honestly, I cannot fathom how you can be so dense as to not see this fact.

  35. poptones says:
    February 24, 2006 at 10:52 am

    Indeed, and here is the response of the middle men of culture (today, Feb. 24, 2006) is…
    .
    MPAA Files Lawsuits Targeting Major Torrent Sites
    http://www.slyck.com/news.php?story=1106
    .
    paranoia..no, I’m a realist.

    No, you’re being a cheat. Those trackers are being sued for infringing the copyrights of others, not for hosting creative commons works. In fact, I would defy you to find more than a dozen public domain or cc licensed works across their entirety.

    It is not your right to rebroadcast anything anytime it suits you. It never was. It wasn’t your right in 1924, it wasn’t your right in 1954, and it ain’t your right today. The only difference between then and now is we have never before had 60% or more of our homes equipped with broadcqasting equipment.

    Things have changed, but that doesn’t mean every last part of the old way deserves to be destroyed. Other trackers, like this one don’t seem to be having such problems… gee, wonder why?

  36. Jim Powers says:
    February 24, 2006 at 11:33 am

    Really? Usenet is decades old and continues to grow by gigabytes of traffic every single month. The web is ever expanding, and torrents now, by many estimates, account for a third or more of all traffic.

    Nonameplease: Here I have to actually agree with poptones. If you have something that you can share over the Internet. Then please do so. There are many outlets for you. What I think you were meaning to say (and please correct me if I am wrong) is that media companies can select not to use their distribution channels to distribute a particular piece of work. That is their prerogative. The Internet can be used to great effect in distributing works. I encourage you to do so. In reality you cannot simply assume that you are entitled to the distribution and marketing channels offered by large media companies.

    Now, there are ways that these media companies can actually actively suppress work. There was a case, not that long ago, where an Australian independent film maker could not or would not cough up the dough to the DVD consortium to get the necessary licenses to region encode their content outside Australia. Although I consider this to be unjust the DVD consortium essentially owns and controls the distribution of “content” on that medium. In this case you can be locked out of this channel and you will have to make due finding other ways to get your work out. There are ways, from what I understand, because either the license fees are “cheap” for distribution of DVDs encoded in the region of origin or free. It’s been a while since I read up on this stuff so I admit being rusty. You might have to find a distributor(s) in the regions where you want to distribute your work who are willing to fork over the dough to get the content encoded for the region in question.

    There are more publicly accessible websites hosting high bandwidth media content FREE OF CHARGE than ever.

    Although FREE OF CHARGE is not a bad thing nearly all of these outlets you speak of are not free (as in liberty). So long as we live in a world where copyright rules the day and the DMCA makes it illegal to get around DRM this is the best that we can get.

    Even if a site gets removed from the web the content may still roam free. Meanwhile, I�ve been a regular visitor to Magnatune and CD baby I�ve never seen an artist squashed by the man – even artists who post some of their work at these places who also have major label contracts.

    Again, I have to agree with poptones here and say that a multitude of outlets content is a good thing. Even if you are kicked out of one site you can ultimately choose to set up your own website to distribute your own work, and maybe even the work of others. Then you too can have the privilege of being the object of other people’s rage and disgust for not distributing “some” content. We are all editors.

    It�s irrelevant. Copyright protects everyone equally.

    Much too big a comment to take on right now, I actually have to get some work done, but I’ll get back to this later.

    Sorry, but no matter how many times you attempt this rhetorical construct it still comes off trite and laughably overblown. Who, exactly, has come to confiscate your computer? Or your software? If I am selling something and then decide not to sell it anymore, is that “the man taking away your shit?” No, it�s me not selling something. Get over yourself.

    This is purely a matter of perspective. Some take the attitude: “we’ll cross that bridge when we come to it.” Some take the attitude: “I don’t want to get anywhere near the bridge.” I know that it is a certainty for me, it sounds like it is also the case for Nonameplease as well (I don’t want to speak for you so sound off as necessary), that I see maneuverings in the trend of technological advancement of copyright control that clearly indicate that co-opting your property (say a computer) though both hardware and software means such that you lose the ability to be the sole arbiter over how your property complies to your will is very much in the works. I am not willing to sit around and wait for this situation to become blatantly obvious before complaining. I wish to preempt this possibility and prohibit that from ever actually occurring. Tin-foil hat and all.

    I find it doubly ironic that those of you who seem to believe you believe in free expression really do not at all. Encryption is speech, yet you seem unable to respect the rights of those who would speak it.

    I agree encryption is speech, feel free to speak it. But if you intend to communicate to some recipient then there must be a decryption process at the other end that results in something decipherable to the recipient. In the case of e-mail I would expect that you encrypted with my public key so I can decrypt it with my private key. Otherwise the communication does not happen. Now, once decrypted I may act on this decrypted copy any way I choose. This freedom I am not willing to give up as the result of a one-sided imposition from say you. Now, we may actually agree that I won’t leave decrypted versions of your work floating around on my hard disk that is for you and I to agree on and we can negotiate this. However, in the end you cannot really control what I do with the decrypted content. I could print it, I could memorize it. I could take screen shots of it, etc.

    But with regards to DVDs, MP3s, CDs, OGG files, etc. all of which are encrypted as there are rules that define how information is encoded then decoded if the rules are understood and the information is available to enable deciphering then the end result is something understood by the recipient. What I don’t accept is a-priori rules from media publishers that tell me what I can or cannot do, for personal use, with the deciphered content. I have paid for my copy, my relationship with the publisher ends there.

  37. poptones says:
    February 24, 2006 at 12:15 pm

    Now, we may actually agree that I won’t leave decrypted versions of your work floating around on my hard disk that is for you and I to agree on and we can negotiate this.

    that is exactly what DRM and “trusted computing” means: by you and I choosing, of our own free will to run the exact same, encryption protected software, we have come to this agreement.

    TCPA does not inflict upon the owner what will an will not happen. In order to be effective, it can’t – TCP enabled devices are even shipped, by default, unactivated. It has to be this way because the end user must supply it with activation credentials, and the whole idea is that only the end user knows what those credentials are. Once supplied they are “locked away” inside what essentially amounts to a lucite safe – you can see inside, but you can never open it in order to read what’s on the papers inside. That doesn’t even mean we can’t use open source software or operating systems – it only means we agree to get the kernels of said software from a “trusted authority.” There is no reason that trusted authority cannot be secure servers operated by redhat or canonical.

    However, in the end you cannot really control what I do with the decrypted content. I could print it, I could memorize it. I could take screen shots of it, etc.

    Uh uh. Because I’m not going to send you my video content unless you use software that recognizes the DRM metadata fields encoded in my programming. You might take screenshots with a video camera, but unless you have an approved HDMI signal path you won’t get any high def video, and your player must recognize the fair use credentials built into my file – that means you get to “rip” up to two minutes of fat content every month, certain pieces (like the climax of the story, or perhaps the flashes of nudity or, if it’s porn, the “money shots”) will not be available at all for capture, and unless your client knows how to identify and respect these fields, my content ain’t gonne play on your machine at all. I’ll happily send it to you, and you may feel free to rebroadcast the file as I send it to you all you like – those others who obtain the file and will run approved code will enjoy it, I’m sure.

    So now what do you do? Start cracking?

    Feel free to memorize and repeat all you like: this makes my point entirely about the difference between embodiments of knowledge and mere information.

  38. Jim Powers says:
    February 24, 2006 at 1:36 pm

    that is exactly what DRM and “trusted computing” means: by you and I choosing, of our own free will to run the exact same, encryption protected software, we have come to this agreement.

    Firstly, we have this kind of encryption already we don’t need “trusted computing” (in the form of TCPA) to do anything like this. Everything you just mentioned is already available today. I see nothing new that TCPA brings to the table.

    TCPA does not inflict upon the owner what will an will not happen. In order to be effective, it can’t – TCP enabled devices are even shipped, by default, unactivated. It has to be this way because the end user must supply it with activation credentials, and the whole idea is that only the end user knows what those credentials are. Once supplied they are “locked away” inside what essentially amounts to a lucite safe – you can see inside, but you can never open it in order to read what’s on the papers inside. That doesn’t even mean we can’t use open source software or operating systems – it only means we agree to get the kernels of said software from a “trusted authority.” There is no reason that trusted authority cannot be secure servers operated by redhat or canonical.

    Firstly TCPA is only one way to do exactly what you described. There are other methods for achieving the exact same result. The problem with such a facility being “baked into” the hardware is that software will be built to exploit this where I as owner of the property cease to be the sole arbiter of what and how this piece of property does. Under no circumstances am I willing to give that up. Future content and delivery mechanisms will be built to trust that the hardware “knows whats right” as opposed to the owner of the hardware. I will not permit this. The owner of the hardware is responsible for making such judgment calls.

    Also TCPA being baked into the hardware and software utilizing it without my consent (since it will eventually be on all hardware as it is being stealthily being deployed right now) exactly counters your statement about of our own free will. There will be cases where my will will be irrelevant, such as when I legally acquire some content that plans on using TCPA. Now you would say: “look that’s the format that the content was published with take it or leave it”. I would say: “As soon as a crack is available so I can do with this content anything I want for personal use I will exercise that avenue to personal use and please heave me alone.” I will not relinquish to the blob of metal and plastic in front of me decisions about what I can or cannot do with this content. Right now because of the DMCA this is absolutely illegal, that is exactly why I wish for the DMCA to be repealed.

    This “lucite safe”, as you call it, is exactly the kind of thing I do not want to see happen. It is yet another embodiment of the idea that I, as owner of a piece of property, am not the sole arbiter of what and how that property is used. Your are promoting the idea that there are parts of my property outside of my direct control that is used to communicate directly or indirectly (or maybe comes with baked-in rules) with external entities to decide what are allowable actions on my piece of property. You have gutted my notion of property. I will not allow this. I will resist and seek whatever means I can to alter the legal environment to stop you or anyone else for that matter from doing this.

    Uh uh. Because I’m not going to send you my video content unless you use software that recognizes the DRM metadata fields encoded in my programming. You might take screenshots with a video camera, but unless you have an approved HDMI signal path you won’t get any high def video, and your player must recognize the fair use credentials built into my file – that means you get to “rip” up to two minutes of fat content every month, certain pieces (like the climax of the story, or perhaps the flashes of nudity or, if it’s porn, the “money shots”) will not be available at all for capture, and unless your client knows how to identify and respect these fields, my content ain’t gonne play on your machine at all. I’ll happily send it to you, and you may feel free to rebroadcast the file as I send it to you all you like – those others who obtain the file and will run approved code will enjoy it, I’m sure.

    Not sending me the material after we have negotiated terms and we have come to a mutual understanding that we cannot agree on how to send such a video is one thing. Being born into a world where choices are removed from consideration is quite another. Your HDMI example is simply something I cannot accept. If I legally acquire something I do not recognize somebody else’s authority about what I can do with that legally acquired object. I can see we are not going to agree on this. So be it. For me the issue is not the enjoyment of lack there of of the materials encoded in the files you send me, it is the fact that there is a one-way dictation of terms about appropriate uses of this content that you and my property have colluded on to decide on my behalf what I can do with the content. I reject and I resist this at every turn.

    So now what do you do? Start cracking?

    If necessary, yes. But I really don’t think is has to come down to this.

    Feel free to memorize and repeat all you like: this makes my point entirely about the difference between embodiments of knowledge and mere information.

    I really cannot decipher what you mean by this. I presume you mean something like a mathematical isomorphism. Such an idea is a given.

  39. poptones says:
    February 24, 2006 at 3:02 pm

    that is exactly what DRM and “trusted computing” means: by you and I choosing, of our own free will to run the exact same, encryption protected software, we have come to this agreement.
    .
    Firstly, we have this kind of encryption already we don’t need “trusted computing” (in the form of TCPA) to do anything like this. Everything you just mentioned is already available today. I see nothing new that TCPA brings to the table.

    Again, absolutely and completely wrong. We do NOT have anything of this sort in the desktop realm simply because I have zero means of being reassured you will not break this trust by running hacked code.

    Zero. None. Not “only a little” assurance, but nada. nyet, zip. Because the desktop platform does not contain the structure necessary to provide reasonable assurance the software running on it is the software we agreed upon, there is presently no means at all of enforcing this contract. With no means of enforcing it, there is no agreement and no contract. Your assertion fails fundamentally.

    If I legally acquire something I do not recognize somebody else’s authority about what I can do with that legally acquired object.

    You are either a liar or a criminal. You cannot use a gun to hold up a liquor store, you cannot use your car as a weapon, violate speed limits, or even operate it on public roads without a license, you cannot smoke cigarettes in federal buildings, you cannot drink beer on a street corner, you cannot drink while operating a car, you cannot xerox a book and hand out copies to your hundred closest friends, you cannot post child pornography even if the child and that child’s parents are long dead, you cannot incite others to take up arms against the government, you cannot provide instructions or materials that directly contribute to the creation of dangerous munitions…

    You have the ability to do these things. You do not have the right to do them because such actions constitute a public menace… as does breaking encryption against the will of those who publish it, as does undermining the value of works through dilution, as does repurposing expressions of knowledge created by others who do not want to be part of your expression of knowledge.

    No one is forcing you to purchase a computer you do not want to have. Or just buy whatever the hell you want and never activate the tcpa – problem solved. It’s not my fault you refuse to meet me in agreement, nor is it your right to make this my problem – and if you should try, the legal system will see to it that you are not given such opportunity again… just as it does when you decide to get drunk and drive over a flock of children playing in the street.

    You have gutted my notion of property.

    It is quite obvious you have no “notions of property” – simply because you have no respect for it. You do not have the right to put a gun to my head and force me to share with you my knowledge. The “ideal” (to be generous) you espouse is exactly this

    Sorry, but no matter how you roll it your hypocrisy shines through. Every time you restate your beliefs they inevitably mire down to “it’s my right to do as I damn well please no matter who it harms.” Thankfully, we don’t live in this great anarchy you envision.

  40. Matt C says:
    February 24, 2006 at 3:21 pm

    You cannot use a gun to hold up a liquor store, you cannot use your car as a weapon, violate speed limits, or even operate it on public roads without a license, you cannot smoke cigarettes in federal buildings, you cannot drink beer on a street corner, you cannot drink while operating a car, you cannot xerox a book and hand out copies to your hundred closest friends, you cannot post child pornography even if the child and that child’s parents are long dead, you cannot incite others to take up arms against the government, you cannot provide instructions or materials that directly contribute to the creation of dangerous munitions…

    You have the ability to do these things. You do not have the right to do them because such actions constitute a public menace…

    I think Jim’s point is just that all those actions are forbidden because those uses of those pieces of property impinges on other people’s rights. He wants to be able to play his CD on any appropriate piece of equipment. He’s currently forbidden to do so by law.

    He doesn’t want to jam his CD in your eye. He’s forbidden to do that by a different law. I don’t think he has a problem with that one.

  41. Jim Powers says:
    February 24, 2006 at 4:16 pm

    Again, absolutely and completely wrong. We do NOT have anything of this sort in the desktop realm simply because I have zero means of being reassured you will not break this trust by running hacked code.

    Zero. None. Not “only a little” assurance, but nada. nyet, zip. Because the desktop platform does not contain the structure necessary to provide reasonable assurance the software running on it is the software we agreed upon, there is presently no means at all of enforcing this contract. With no means of enforcing it, there is no agreement and no contract. Your assertion fails fundamentally.

    poptones, this is becoming tedious.

    I know that the TCG promotes their offering as hacker proof, but you would be placing a lot of trust in that claim. RSA promotes their solution as also being hacker proof. You believe TCG but won’t believe RSA. If you believe RSA then, in fact we do have ways without TCPA to achieve what you are looking for today.

    The trust relationship I’m talking about is between people, not between you an my machine. If you cannot trust your recipient then there is no trust, period. If the recipient has decided that breaking the trust relationship is worth circumventing some sort of hardware-based DRM they will find a way to defeat that DRM. Ways will be found to defeat this DRM. You have to return to trusting people. I’m sure that the people at the TCG employ smart people, but there is no shortage of smart people who can figure out how to get around the offerings of the TCG. Once compromised you now have a planet full of hacked in hardware the is effectively useless.

    In the end you are going to have to trust people on the other end to hold up their end of the bargain, which is as it should be.

    You are either a liar or a criminal. You cannot use a gun to hold up a liquor store, you cannot use your car as a weapon, violate speed limits, or even operate it on public roads without a license, you cannot smoke cigarettes in federal buildings, you cannot drink beer on a street corner, you cannot drink while operating a car, you cannot xerox a book and hand out copies to your hundred closest friends, you cannot post child pornography even if the child and that child’s parents are long dead, you cannot incite others to take up arms against the government, you cannot provide instructions or materials that directly contribute to the creation of dangerous munitions…

    Not a single one of these examples applies to the case I am talking about. I acquire a file legal, fair and square. It is on my computer. I manipulate it anyway I want for personal use. End of story. You, of course disagree and see ample president to put this down. Fine, I will return, one again, to one my original goals: I want to seek ways under the law to ensure that this right cannot be taken away.

    Your examples fall into several categories:

    Stealing: theft at gun point, copyright infringement. These possibilities don’t stop me from legally owning a gun or a xerox machine.

    Engaging in dangerous activity in a public space: DWI, smoking in public places. I can own the car without a license. I need a license to use the car on public roads.

    Obscenity or “blue” laws: Child pornography drinking on a street corner (which is legal in many countries around the world).

    Debatable or to be decided by courts: cannot provide instructions or materials that directly contribute to the creation of dangerous munitions…

    You have the ability to do these things. You do not have the right to do them because such actions constitute a public menace… as does breaking encryption against the will of those who publish it, as does undermining the value of works through dilution, as does repurposing expressions of knowledge created by others who do not want to be part of your expression of knowledge.

    The “breaking encryption against the will of those who publish it” is the DMCA, a law I have already and repeatedly said I want repealed. I simply do not agree that decrypting and trans-coding files I obtain legally for personal use has anything to do with “dilution, as does repurposing expressions of knowledge created by others who do not want to be part of your expression of knowledge.” And even if it did I would seek changes under the law to expressly allow this.

    No one is forcing you to purchase a computer you do not want to have. Or just buy whatever the hell you want and never activate the tcpa – problem solved. It’s not my fault you refuse to meet me in agreement, nor is it your right to make this my problem – and if you should try, the legal system will see to it that you are not given such opportunity again… just as it does when you decide to get drunk and drive over a flock of children playing in the street.

    poptones, please, really, stick to the point. There simply is no analog between transcoding legally acquired digital files for personal use and murdering children.

    Look, I can see that you hold the DMCA close to your heart, you love the thing and all the possibilities that can spew forth. We are not going to see eye-to-eye. I and others like me are your worst nightmare. We repesent the unenlightened mobb incapable of being redeemed. You have a leg-up on me and others like me because you already have the DMCA on the books and are seeking to, as rapidly as possible, export DMCA-like laws. I resist your efforts. I seek to roll-back the DMCA, you aren’t going to succeed in convincing me otherwise. I see the DMCA is an embarrassment to our legal system that has incredibly nasty consequences that I find abhorrent. You disagree, let’s leave at that.

    It is quite obvious you have no “notions of property” – simply because you have no respect for it. You do not have the right to put a gun to my head and force me to share with you my knowledge. The “ideal” (to be generous) you espouse is exactly this

    poptones, I could say the same thing about your notions of property. When I acquire, legally, a copyrighted work controlling influence of that copy is mine, therefore I own it. I would say that it is you who does not respect ownership because you think it is acceptable for you to retain controlling influence over the legally acquired copy after our economic transaction has completed. I do not recognize this, and I simply won’t allow this.

    Sorry, but no matter how you roll it your hypocrisy shines through. Every time you restate your beliefs they inevitably mire down to “it’s my right to do as I damn well please no matter who it harms.” Thankfully, we don’t live in this great anarchy you envision.

    Really, why do you have to engage in the name calling? It is not going to work. I am completely comfortable with my own hypocrisy. I will assert again:

    First: a halt to all expansion of copyright-based laws that are intended to make consumers of copyrighted materials criminals by default, or criminals as a result of “traditional” fair-uses of copyrighted materials.

    Second: an actual REDUCTION of the length of the copyright term. Personally I cannot see a rational argument for anything longer than 20 years.

    Third: an expansion of “fair-use” applications of copyrighted materials.

    And in every example I have stated so far I have said over and over again: I obtain, legally, a copy of a copyrighted work. I then transform that copyrighted work in any way I please for personal use. I am not giving it away, I am not hurting you financially, I am not doing any harm. Of course you disagree because somehow with your penetrating retention of external controls over my “property” that has been thwarted and you have been harmed in some way.

  42. Jim Powers says:
    February 24, 2006 at 4:18 pm

    Matt C:

    You are absolutely right.

  43. poptones says:
    February 24, 2006 at 5:33 pm

    First, you know I’m surprised you didn’t come after me for the “you are a criminal. Perhaps you realized it wasn’t my intent to assert you have or would do any of those things (not even speeding!) only to make the point we already submit to laws and social barriers to “free will” when it comes to “remixing” our own physical property.

    I know that the TCG promotes their offering as hacker proof, but you would be placing a lot of trust in that claim.

    Irrelevant. I use tcpa etc only in the most generic sense. Your disagreement with the fundamentals of the technology make my argument pertinent to any similar or competing variations, and therefore consistent. And it doesn’t even matter if it is “hacker proof” – as has been pointed out to you countless times I already agree with you on that – neither is federal currency “hacker proof.” we have people who violate counterfeiting laws all the time – that’s why we have laws and enforcement mechanisms in place to help secure the value of currency so as to make sure the market for our currency is not undermined through dilution.

    In a world where information is commerce that line between the physical and ethereal blur. You’re welcome to hate it, you’re welcome to unplug, you’re welcome to climb a tower and scream for an end to all property laws. What you don’t have the right to do is usurp the value of property not owned by you. Like it or not, this is the new digital realm. These notions about “bits have no value” are as antiquated as the univac: bits can and do have value. Problem is, right now they only have value for those who own and control the channels of communications. You are, perhaps not so ironically, defending the control those corporations and oppressive governments hold over you and all of society with every breath against trustworthy infrastructure and the rights of the proletariate who choose to embrace it.

    And in every example I have stated so far I have said over and over again: I obtain, legally, a copy of a copyrighted work. I then transform that copyrighted work in any way I please for personal use. I am not giving it away, I am not hurting you financially, I am not doing any harm.

    You’re still wrong, and it is not just me who disagrees with you. it is not even the “new” supreme court or the corrupt congress that disagrees with you, but generations of historical precedent. Outside certain exemptions, restaraunts cannot just play music for their patrons without proper licensing agreements, either directly or via services that protect them, for example, and the precedents supporting this are not just recent add-ons to old regulations. On a smaller scale, even the ruling in the Sony decision made it clear the judgement was based, in part, on the fact the publishers themselves were not at the time serving that part of the market – that is “transforming” copyrighted content to home videotape caused minimal economic harm to publishers simply because they, themselves, were not offering similar materials.

    With two dollar movies on dvd at nearly every corner market, ten dollar dvd blockbusters and ninety nine cent video and music downloads you cannot so easily make that argument now, and the validty of any such attempts are further diminished by the day. Recording “survivor” on your home deck may have minimal impact, but if the producers themselves offer the same content for a reasonable fee then you are, in fact, causing economic harm to the market even with your personal transformative use. That you would not pay for the content anyway is irrelevant – it’s your right to do without, but it’s not your right to take because you’re too cheap to cough up three bucks for a show.

    If the price is too high or the terms too restrictive to meet market demands, it is the copyright holder’s right to better meet those demands… or not. If you want to tell all your friends about survivor that’s perfectly your right and no drm in the world can ever change it; if you want to get a bunch of friends together and recreate the last survivor episode even that is your right, although you may run into trouble if you publish it in a manner that infringes on the producer’s trademarked use of the name. No one is preventing you from creating more speech – from providing specific embodiments of your knowledge – only from hijacking the embodiments of others against their wishes.

    Gnu, BSD, and the gpl itself owe their very existence to exactly this process – the desire to create a Free and competing voice to another they view as oppressive. This model is entirely consistent, both in effect and causality, with the intent of copyright itself.
    You seem to see me as some sort of industry shill or corporate junkie. The fact is I use linux and have for years, there is not a piece of Microsoft software in my home, nor will there be in the business I am constructing, and the media project I am planning revolves around providing high quality content to the educational market that will forever be protected to roam free in the commons while (hopefully) providing me and others some modest income. I don’t know what ideals you actually support, but they seem to involve neither freedom nor respect for the rights of others. I don’t want Warner “remixing” my stuff any more than I want to help spread their influence by doing so in my own works.

    You, by hijacking the voice of the “non free” and embracing it into your life, help propagate that system of control even as you claim to be trying to undermine it. Likewise, you further deny reward to those who devote their time and energy to creating works which embrace the ideals to which you merely give lip service.

  44. Jim Powers says:
    February 24, 2006 at 9:42 pm

    First, you know I’m surprised you didn’t come after me for the “you are a criminal. Perhaps you realized it wasn’t my intent to assert you have or would do any of those things (not even speeding!) only to make the point we already submit to laws and social barriers to “free will” when it comes to “remixing” our own physical property.

    I have no interest in:

    1) Going after you at all.

    2) Pursuing this line of reasoning in the context of the discussion we have been having.

    Irrelevant. I use tcpa etc only in the most generic sense. Your disagreement with the fundamentals of the technology make my argument pertinent to any similar or competing variations, and therefore consistent. And it doesn’t even matter if it is “hacker proof” – as has been pointed out to you countless times I already agree with you on that – neither is federal currency “hacker proof.” we have people who violate counterfeiting laws all the time – that’s why we have laws and enforcement mechanisms in place to help secure the value of currency so as to make sure the market for our currency is not undermined through dilution.

    You have got to be kidding me, or maybe you are confusing me with some other person you have been bullying into compliance recently. I have gone back and reread this thread several times now and the last time we discussed the the TCPA you used it as an unassailable vehicle for imposing a one sided-contract by co-opting my hardware to enforce its terms.

    Other than that, yes we agree on this point.

    But this gets me back to my original point: we already have encryption systems that can accomplish your goals without the need of the TCPA (I can see you’re going to flip-flop on this one already)

    In a world where information is commerce that line between the physical and ethereal blur. You’re welcome to hate it, you’re welcome to unplug, you’re welcome to climb a tower and scream for an end to all property laws. What you don’t have the right to do is usurp the value of property not owned by you. Like it or not, this is the new digital realm. These notions about “bits have no value” are as antiquated as the univac: bits can and do have value. Problem is, right now they only have value for those who own and control the channels of communications. You are, perhaps not so ironically, defending the control those corporations and oppressive governments hold over you and all of society with every breath against trustworthy infrastructure and the rights of the proletariate who choose to embrace it.

    poptones, you really and truly believe me to be some sort of superficial ignorant dweeb that has to be set straight by your enlightened viewpoint. That is such a sad and insulting position to take I don’t know where to start. But I will refrain.

    Information as commerce has been around for centuries, we are not on the verge of anything here, it is here. I would like to dismantle the system that makes this happen, yes, but as far as I recall our little spat here has been about how I would like to see some modest changes to copyright law. I cannot hope to try to entertain the dismantlement of the copyright system in my lifetime, but I do want to see a weakening of the powers that copyrights can impose. We disagree.

    Why on Earth are you simultaneously agreeing that the “trustworthy” infrastructure is, um, trustworthy at the same time agreeing that is can be undermined. Oh, I see the DMCA. But the DMCA is not everywhere. Resistance to this kind of law is pretty strong outside the US (resistance within the US is pretty strong as well, and growing). I count myself among those who resist this. Please, don’t give me the “resistance is futile” nonsense, it really isn’t going to do either of us any good because we are simply going to disagree about this point. Also, encryption is already here. the “proletariat” (ugh, I feel so dirty) has many forms to choose from.

    What you don’t have the right to do is usurp the value of property not owned by you.

    Ok, I’ve introduced several items in this thread:

    – Punitive actions against organizations that perpetuate treating their customers like criminals from the get go and trampling on fair use rights.

    – Dissolving the copyright system.

    – Seeking the more modest goal of curbing the influence of copyright enabled powers.

    Other than a couple of posts I do not entertain any hope of accomplishing the sunsetting the copyright system so let’s get that out of the discussion (save that for another time). What I’m really after it the third item on my list but I am willing to use the first to accomplish getting the third. We disagree on the efficacy of the first item, and agree on the ethical dilemmas is creates. We disagree on the third point on principle.

    You may find this surprising, but I don’t want to usurp ownership rights. I grant that it is/was easy to confuse what point I was discussing where but I simply want ownership of copies of copyrighted material to recognize that the owners of such copies can do what ever they want for personal use. We disagree.

    These notions about “bits have no value” are as antiquated as the univac: bits can and do have value.

    This coming from the same person who has hammered on and on about the difference between representation and information?

    I buy an electronic book, DVD, or CD, or what have you. I transform this content into some other content for personal use. YOU got money for the value if the information, I got a representation of that information. I then transformed that representation of that information into another form (as I would when the information enters my head) for personal use. I don’t give away or otherwise dilute the value of the information you have for sale. Leave me alone. End of story.

    You’re still wrong, and it is not just me who disagrees with you. it is not even the “new” supreme court or the corrupt congress that disagrees with you, but generations of historical precedent. Outside certain exemptions, restaraunts cannot just play music for their patrons without proper licensing agreements, either directly or via services that protect them, for example, and the precedents supporting this are not just recent add-ons to old regulations. On a smaller scale, even the ruling in the Sony decision made it clear the judgement was based, in part, on the fact the publishers themselves were not at the time serving that part of the market – that is “transforming” copyrighted content to home videotape caused minimal economic harm to publishers simply because they, themselves, were not offering similar materials.

    Firstly, please don’t feel so empowered to provide definitions to words that I have been using like “personal” as in “personal use” to include playing copies music I personally own in a place like a restaurant simply so you can bitch-slap me with the word “wrong” again.

    Your particular take on the Sony case is incomplete however. The Sony case was substantially swayed by the fact that the betamax could also be used for substantial non-infringing uses, including playing movies for sale or playing movies that you made. In a similar vein, clearly a general purpose computer can be used for both infringing and non-infringing applications, but a computer can be used for substantial non-infringing purposes. Your particular editorial license on this case is consistent with your view on the matter we have been discussing, but it is incomplete and does not do the ruling justice.

    With two dollar movies on dvd at nearly every corner market, ten dollar dvd blockbusters and ninety nine cent video and music downloads you cannot so easily make that argument now, and the validty of any such attempts are further diminished by the day. Recording “survivor” on your home deck may have minimal impact, but if the producers themselves offer the same content for a reasonable fee then you are, in fact, causing economic harm to the market even with your personal transformative use. That you would not pay for the content anyway is irrelevant – it’s your right to do without, but it’s not your right to take because you’re too cheap to cough up three bucks for a show.

    My previous comment applies to this as well. You are only presenting part of the story. The Sony case allowed the existence of the betamax even though it did cause infringement because of the substantial non-infringing use.

    Even what I just said aside: every one of my “personal use” examples given throughout this thread has been: I acquire a copy legally. And in every case I said that I DID cough up the dough. You got your money for the information NOW LEAVE ME ALONE! I have said this over and over. Now, the Sony case also allows me to use my computer as a PVR. Why? because despite the fact that I infringe while recording “survivor” I can use my computer for substantial non-infringing uses as well.

    If the price is too high or the terms too restrictive to meet market demands, it is the copyright holder’s right to better meet those demands… or not. If you want to tell all your friends about survivor that’s perfectly your right and no drm in the world can ever change it; if you want to get a bunch of friends together and recreate the last survivor episode even that is your right, although you may run into trouble if you publish it in a manner that infringes on the producer’s trademarked use of the name. No one is preventing you from creating more speech – from providing specific embodiments of your knowledge – only from hijacking the embodiments of others against their wishes.

    RE: price – marketplace, given

    RE: tell friends – agreed

    RE: recreate – you could run afoul even if you don’t publish. This is how playwrights get paid. But in the example you are giving infringement is minimal.

    RE: your knowledge – VERY slippery slope here and you know it. All of our knowledge is an accumulation and incremental refinement of other knowledge. Today copyrights end at the skull, tomorrow… ???

    RE: hijacking – I think that you are talking about my piracy as punishment idea here. Agreed. But you know we agreed to this a while ago. I wasn’t disagreeing about the fact that my piracy as punishment plan didn’t involve theft according to current copyright law. But I haven’t been pushing this plan for a while now in this thread. I still hold to it as a viable punishment option even all comments considered. In reality, I don’t want to execute this plan but I am willing to.

    Gnu, BSD, and the gpl itself owe their very existence to exactly this process – the desire to create a Free and competing voice to another they view as oppressive. This model is entirely consistent, both in effect and causality, with the intent of copyright itself.

    I disagree to some extent with your interpretation. The GPL, in particular exploits copyright as a way to legally reinforce its libre goals. There is an uneasy relationship between the GPL and copyright because the FSF isn’t too thrilled with legal constructs that enable and support oppressive “intellectual property” (I know RMS doesn’t like to use this euphemism, and I understand why, but I will use it now as a quick and dirty shorthand) regimes. Basically, there is no other legal construct available to meet their needs so copyright it is. Overall, however, we are in agreement on this point.

    Additionally, the GPLv3 will contain language specifically prohibiting code covered by by this version of the license to be used in any kind of effective DRM system, that is one where it is actually possible to infringe on somebody’s rights

    You seem to see me as some sort of industry shill or corporate junkie. The fact is I use linux and have for years, there is not a piece of Microsoft software in my home, nor will there be in the business I am constructing, and the media project I am planning revolves around providing high quality content to the educational market that will forever be protected to roam free in the commons while (hopefully) providing me and others some modest income. I don’t know what ideals you actually support, but they seem to involve neither freedom nor respect for the rights of others. I don’t want Warner “remixing” my stuff any more than I want to help spread their influence by doing so in my own works.

    I am stunned that you could possibly come to the conclusion that I am “some sort of industry shill or corporate junkie.” I must say that I think that you are simply retaliating against me arbitrarily with that statement as I have been quite focused from the start on the fact that in no way shape or form so I want corporations to exert any more influence over my or anybody else’s lives then they already have.

    After every personal attack you have thrown at me throughout the course of this thread you finally calm down and say “I don’t know what ideals you actually support, but they seem to involve neither freedom nor respect for the rights of others.” Seriously, have you read what I have been writing? I mean after all this I have been painstakingly cutting and pasting your words, even trying to preserve some semblance of the formatting. I have been doing my best to keep my emotions in check as best as I could trying not to descend to you level and lash out with insults and epithets. I have seen some of your disrespectful and dismissive responses you have given to other posters as well. I have spent hours crafting postings only to have you jerk my chain like this? Whatever. The way you go about interacting with the world is baffling to me. You don’t know jack about me and many of the other posters (although it appears you do know some of the posters well), yet you feel at liberty to hurl down judgments and characterizations to discredit all save yourself as a bunch of ignorant malcontents that should be so damn happy with the status quo and your plans to herald in the new world of information commerce right out of the pages of “cryptonomicon”. We can use your comments. I KNOW that behind the venom there is a very intelligent person capable of being constructive. But we don’t need your personal 1-minute summaries of our character.

    You, by hijacking the voice of the “non free” and embracing it into your life, help propagate that system of control even as you claim to be trying to undermine it. Likewise, you further deny reward to those who devote their time and energy to creating works which embrace the ideals to which you merely give lip service.

    I don’t even know what the hell you are talking about here, but I can tell you that is inaccurate.

  45. poptones says:
    February 25, 2006 at 4:04 am

    the Sony case also allows me to use my computer as a PVR. Why? because despite the fact that I infringe while recording “survivor” I can use my computer for substantial non-infringing uses as well.

    Is it you who has claimed before to be an attorney? If so, I have a hard time believing it. Perhaps it wasn’t you – anyway, you are again incorrect in your evaluation: the “substantial non infringing uses” is the part that protects Sony from liability for “enabling piracy.” SCOTUS makes it clear in that ruling, however, that infringement is still infringement – that is, recording tv shows, whether Disney movies or major league baseball, against the wishes of the copyright owner is still infringement. The “substantial non infringing uses” is what allows you to go to wal mart and buy a video recorder, but that ability to buy the recorder does not give you unrestrained “right to infringe.” All that presently lends you this “right” is the intractability of actually enforcing the laws against such infringement without violating other, more important rights – like the right to privacy in your home, protection from unwarranted searches, etc. But that all changes fundamentally once you enter the realm of computers attached to the internet, because a computer attached to the internet is, in many ways, like a person walking down the street – you are no longer only in your home; you are in a public place. (Ironically, a more trustworthy computing platform is one of the very few effective means you have of reclaiming some of this lost privacy, but you object to having any such capabilities.)

    Lessig makes the above points in very detailed fashion in Code v.2. Have you read Lessig’s books? Have you even read Sony v Disney? I certainly see no evidence of it in your argument.

    Additionally, the GPLv3 will contain language specifically prohibiting code covered by by this version of the license to be used in any kind of effective DRM system

    That is not yet decided and even if such a profoundly stupid restriction does end up in the license it will be relevant only to future application code. Because gpl3 is presently a more restrictive license than 2 it cannot be applied retroactively to any existing code unless the entire community of developers who have contributed to the project agree. Given that large projects may have had hundreds of contributors over their years of development, many of whom may not even be located now, only new projects may adopt such a license.

    Perhaps you don’t know this as you are not a developer. I am a software developer and I know both how the system works and the motives driving much of the core development. And Linus Torvalds, the benevolent dictator who heads up the kernel development, has already stated he welcomes adding DRM capabilities to the kernel, and that the kernel will never be GPL3 so long as there are restrictions on such use because disallowing the use of DRM in linux essentially means locking it out of substantial future capabilities – not the least of which would be to even run on tc enabled platforms. He seems to be one of the very few enlightened indiviudals in this community. Sadly, even he does not seem to have the weight to pull more developers in this direction. So, the door remains open but no one is presently approaching (though I would not doubt redhat, for one, is privately working on this).

    I am stunned that you could possibly come to the conclusion that I am “some sort of industry shill or corporate junkie.”

    I didn’t conclude any such thing. I suggest you revist any available texts on basic grammar, then take a minute to actually read what I said.

    I don’t even know what the hell you are talking about here, but I can tell you that is inaccurate.

    You don’t understand waht I say yet you assert it is wrong?

    Man, you really need to lay off the crack.

  46. ACS says:
    February 25, 2006 at 5:45 am

    No I don’t agree, not in the slightest: steal crops it is gone from where it was and is now some where else. Direct result of physical laws.

    Make a copy of a digital file: Now there are two files in both places. Not subject to physical laws.

    This is where I’m going to invoke the “gotta except” rule. This is how things like computers and the human brain work: we keep making copies of stuff. This is the nature of the beast. One has to work unbelievably hard (in the end infinitely hard) to make the world of computers (and eventually the human brain) work like the stuff we can hold in our hand. you can either accept this and we can move on or I’m going to be forced to do this every time.

    An interesting justification but short of the mark.

    The point is the relationship between work and reward. The farmer gets no reward and therefore no incentive to grow next years crop. The artist has thier potential customers stolen by piracy and therefore has no incentive to continue creating. Do you now understand?

  47. Matt C says:
    February 25, 2006 at 6:06 am

    The artist has thier potential customers stolen by piracy and therefore has no incentive to continue creating. Do you now understand?

    How condescending and wrong. JD Salinger has decided not to publish any more in his lifetime. Does he have any incentive to continue creating?

    Admittedly, JD is no Mariah Carey, but still. It seems to me there’s a certain amount of creative activity that is going to happen regardless, and as an amateur artist I find the monetary synopsis of why people create so reductive as to be offensive.

  48. Matt C says:
    February 25, 2006 at 6:27 am

    Regarding Linus:

    I am still not totally sure how the gpl3 works, so I asked why Linus said those things, and a good thread was generated by smarter people than me

    http://slashdot.org/comments.pl?sid=176124&threshold=1&commentsort=0&mode=thread&cid=14643200

    Nutshell: This is merely closing a loophole by which people might try to keep essential elements of the sourcecode/compilation secret to deny me exactly what the GPL is designed to ensure cannot be denied to me. That I cannot be denied the use of derivatives of my own work.

  49. Jim Powers says:
    February 25, 2006 at 6:28 am

    Is it you who has claimed before to be an attorney? If so, I have a hard time believing it. Perhaps it wasn’t you – anyway, you are again incorrect in your evaluation: the “substantial non infringing uses” is the part that protects Sony from liability for “enabling piracy.” SCOTUS makes it clear in that ruling, however, that infringement is still infringement – that is, recording tv shows, whether Disney movies or major league baseball, against the wishes of the copyright owner is still infringement. The “substantial non infringing uses” is what allows you to go to wal mart and buy a video recorder, but that ability to buy the recorder does not give you unrestrained “right to infringe.” All that presently lends you this “right” is the intractability of actually enforcing the laws against such infringement without violating other, more important rights – like the right to privacy in your home, protection from unwarranted searches, etc. But that all changes fundamentally once you enter the realm of computers attached to the internet, because a computer attached to the internet is, in many ways, like a person walking down the street – you are no longer only in your home; you are in a public place. (Ironically, a more trustworthy computing platform is one of the very few effective means you have of reclaiming some of this lost privacy, but you object to having any such capabilities.)

    Lawyer: No (please provide evidence that led you to this conclusion)

    Incorrect on evaluation: No

    Internet like walking down street: No

    Trustworthy computing brings back privacy: No

    Ironic: No

    Lessig makes the above points in very detailed fashion in Code v.2. Have you read Lessig’s books? Have you even read Sony v Disney? I certainly see no evidence of it in your argument.

    Lessig’s books: No

    Sony Corp. v. Universal City Studios (1984): Yes

    You can’t see evidence: Yes

    poptones primary modes of argument: intimidation, disinformation, by authority, then by FUD. But really, he’s a great guy or gal as the case may be.

    poptones contribution to the world of insightful biting sarcasm: none.

    That is not yet decided and even if such a profoundly stupid restriction does end up in the license it will be relevant only to future application code. Because gpl3 is presently a more restrictive license than 2 it cannot be applied retroactively to any existing code unless the entire community of developers who have contributed to the project agree. Given that large projects may have had hundreds of contributors over their years of development, many of whom may not even be located now, only new projects may adopt such a license.

    No DRM clause in GPLv3: Will be there, RMS on record saying as much

    More restrictive than GPLv2: No

    Some projects/developers have to decide whether or not to use GPLv3: Yes

    Some projects/developers will automatically allow GPLv3: Yes (Or any later version)

    You have an unassailable ability to predict the future: No

    Perhaps you don’t know this as you are not a developer. I am a software developer and I know both how the system works and the motives driving much of the core development. And Linus Torvalds, the benevolent dictator who heads up the kernel development, has already stated he welcomes adding DRM capabilities to the kernel, and that the kernel will never be GPL3 so long as there are restrictions on such use because disallowing the use of DRM in linux essentially means locking it out of substantial future capabilities – not the least of which would be to even run on tc enabled platforms. He seems to be one of the very few enlightened indiviudals in this community. Sadly, even he does not seem to have the weight to pull more developers in this direction. So, the door remains open but no one is presently approaching (though I would not doubt redhat, for one, is privately working on this).

    Leveled yet another uninformed, unsubstantiated statement about me: Yes

    You are a software developer: Yes

    I am a software developer: Yes

    You are a better person that I: In all possible ways that can be measured with a ruler.

    Linus ok with DRM: Yes

    Linus never accept GPLv3: Originally yes -> Community backlash -> now maybe. In the end probably not. Alan Cox: cautiously optimistic about GPLv3.

    You are the only one privy to this information: No

    You are Linus: No

    Linus enlightened: No

    Linux: I run Gentoo. I build from sources. Mystical signed binaries anointed with TCPA urine of no interest to me. I reserve the right to tinker.

    You represent the vast majority of free and open source developers: No

    I didn’t conclude any such thing. I suggest you revist any available texts on basic grammar, then take a minute to actually read what I said.

    I didn’t conclude any such thing: Yes, you did. You also drew many other conclusion about me along the way.

    I suggest you revist any available texts on basic grammar: Will do so, mother.

    Take a minute to actually read what I said: Once I learn to read I will do so.

    You don’t understand waht I say yet you assert it is wrong?

    Sure, why not?

    Man, you really need to lay off the crack.

    Yes, crack.

    DMCA bad law: Yes, we disagree

    I want the law changed: Yes. You: no, you want more of the same.

    Well kiddies, I can see everything here is going along smoothly under the watchful eyes of poptones, so I can see that there is no need for further intelligent conversation.

    Prof., it’s been great, you’ve got a great crowd here, but it seems a bit stuffy. So rather than make a nuisance of myself I’m going to bow out now.

    The next time I want a riveting discussion of this intellectual caliber I’ll pick a fight with a parrot.

    Chow.

  50. Matt C says:
    February 25, 2006 at 6:59 am

    hehe … here comes that “had enough, eh?” bit and/or declaration of victory.

  51. Jim Powers says:
    February 25, 2006 at 7:05 am

    One last thing before I leave:

    Here, read:

    http://emoglen.law.columbia.edu/publications/anarchism.html

    It not the only work of its kind but it is a very good start. It might help some folks think outside of the box of the status quo.

  52. Jim Powers says:
    February 25, 2006 at 7:07 am

    Some advice for Matt C: don’t cast your pearls before swine.

    Other than that keep up the good fight!

  53. poptones says:
    February 25, 2006 at 10:29 am

    Lawyer: No (please provide evidence that led you to this conclusion)

    More basic grammar skills for you: it wasn’t a conclusion, it was a fucking question – hence the question mark at the end.

    Incorrect on evaluation: No

    Internet like walking down street: No

    I’ll leave you to take that argument up with the professor. he makes several valid points that vividly illustrate the fallacy of your minimalist assertion to the contrary.

    Trustworthy computing brings back privacy: No

    Another trite assertion. Prove it. I’ll happily deconstruct your entire thesis, as I have researched the technology and I do know how it works – and I didn’t rely on a thread from Slashdot for my information, either.

    In the interest of furthering my point re: the relevance of reasonably trustworthy peer to peer ecommerce (which, no matter how many times you tritely assert is presently possible, is readily shown to be nothing of the sort) relates to a truly democratized internet. Don’t forget we have a very, very long way to go – most of the world still isn’t on the net, and perhaps 25 percent of it isn’t even on the electrical grid.

    Anyway, let’s see what the UN has to say about it all:
    ————————–
    …. knowledge-sharing cannot
    be reduced to the exchange of a scant resource for
    which nations would vie simply because it would help
    to create a balance of payments equilibrium or surplus.
    Such a view, inherited from the mercantilist era, may no
    doubt momentarily guarantee the superiority of certain
    countries in respect of research, information or the com-
    mand of information systems, but it does not take into
    account the fact that creativity is a natural and renew-
    able resource that is best spread worldwide, and that it
    needs to be promoted and protected in order to achieve
    its full potential    . Humanity has far more to gain from
    knowledge-sharing through cooperation between the
    most developed and the least developed countries. This
    could indeed allow the diversity of knowledge cultures
    to flourish worldwide. Such ways and means of coopera-
    tion and knowledge sharing are particularly important,
    for they would enable the least developed countries to
    become full participants in the rise of knowledge socie-
    ties, which is still all too seldom the case.
    ————————

    Of the ten percent of the world that is wired, even that is divided by tarrif regions. Every time you cross one of these borders you end up paying ever higher usory fees. The opportunities for someone in a devleoping nation will be minimal simply because so few even have bank accounts. You do not need commerce in order to share knowledge, but you do need some ability to earn a living – and if you are too busy struggling to gather food you will never have time to even learn how a computer works. Being able to participate in a reasonably stable economy is a fundamental need for anyone who is trying to move from the field to the office. It’s not an option, or something you can do later – it’s almost a prerequisite, as the instant you leave the field you become dependant upon others to supply you with food, and they must be paid for their labors.

    So, what happens? In developing countries those who do manage to escape the fields and get an education – leave. They leave because there is no opportunity for them to utilize their knowledge. There is no infrastructure and where there is infrastructure there is still limited money. So those who would otherwise be able to help others leave the fields and work toward a greater common goal, instead leave for a heavily populated western nation where there are already economic and professional opportunities.

    From President Wade, of Senegal:
    ———————————
    For decades the developing countries have, either through direct spending or through assistance, been
    training professionals who, unfortunately, at the end of their studies and their training, are absorbed by the
    economy of the developed countries. Not only does this rerouting of qualified professionals have a financial
    cost, but it creates a gap in the use of the human resources of the developing countries, particularly in Africa.

    For this reason, it is proposed that compensatory measures be taken in the form of transfers in the opposite
    direction, towards Africa, of experts from developed countries, at their expense.
    ——————————-

    Enabling even a fraction of the proletariat of these nations to participate in online commerce would allow them to remain in their homes and work with others toward greater common goals. Attempts to route aid to nations frequently fails due to political structures of control, theft, corruption, etc. Providing knowledge workers in these nations the ability to participate in a peer to peer system of commerce would enable them to bypass those channels of corrupt control, allowing benefactors in developed nations to send payments directly to the intended recipient. With an electronic currency backed by hard western dollars and euros, banks in developing nations would have ample incentive to offer fair and competitive exchange services – just as they do now for currency exchanged via sms services.

    This is not a Cryptonomicon future. Cryptonomicon was a novel. This is real life – life in a world where thousands of villagers starve because the local politicans are hoarding all the food for themselves; a world where 8 year olds provide sexiual favors in filthy public bathrooms so they can afford another can of spray paint to help them fend off the gnawing pangs of hunger. It is unconscionably selfish for anyone to attempt to narrow this argument merely to debates about how long a dead Walt Disney should be allowed to own a cartoon mouse or how a completely user enabled technology should be thwarted simply because it might interefere with our “right” to remix mariah as we sit and hobby away the hours in the warm and cozy confines of our million dollar mcmansions.

  54. Jim Powers says:
    February 25, 2006 at 12:01 pm

    Ok, I’m a hypocrite once again because I’m back one last time. This time for real.

    Am I a lawyer:

    1. http://www.lessig.org/blog/archives/003325.shtml
    2. CRTL+F (On Firefox at least)
    3. Type: “lawyer”
    4. read results
    5. clear search box
    6. type “attorney”
    7. read results
    8. decide for yourself.

    More importantly: does it matter?

    More important things in the world than curbing the power of copyright implies the world should tend to those pressing things (which we should) and leave folks like poptones at home to make sure our “intellectual property” laws are taken care of. I guess so.

    I see you’ve found some of my postings on /.: good for you. I guess that makes me an intellectual write off, eh?

  55. poptones says:
    February 25, 2006 at 12:51 pm

    More important things in the world than curbing the power of copyright implies the world should tend to those pressing things (which we should) and leave folks like poptones at home to make sure our “intellectual property” laws are taken care of.

    Wow, are you confused. You are the one making arguments against opportunity, I am the one pointing out that your world of information anarchy most harms the people who fucking need help the most. You are a parasite to argue your “right to remix” should take priority over someone else’s right to fucking eat.

    Let’em eat cake, eh Marie? Just so long as you got the “right” to remix mariah what does it matter how many weiners little svetlana gets to taste between huffs?

  56. Josh Stratton says:
    February 25, 2006 at 2:07 pm

    MattC–
    It seems to me there’s a certain amount of creative activity that is going to happen regardless, and as an amateur artist I find the monetary synopsis of why people create so reductive as to be offensive.

    Well, copyright is basically economic. Yes, there are absolutely many other significant incentives for creating and publishing works, such as doing it for the fame, or for art’s sake, or for the money that could be made even in the absence of copyright, etc. However, copyright doesn’t really serve to increase those incentives. Instead, copyright gives authors an opportunity to recoup their costs and to profit. If that’s necessary to incentivize authors, then fine. Of course, being of a frugal nature, I’d prefer to not grant copyrights to authors in cases where it was not a necessary incentive; that is, where the author would have done exactly the same thing anyway.

    Distinguishing between the authors that need copyright and the ones that don’t is really a job for a mind reader, but modest hurdles in the form of copyright formalities can do this to a degree. For example, most of the posts here are copyrighted under the present system. However, if we had to pay a token sum to copyright them, as under systems past, then I would bet that none of them would be copyrighted. This is because no one would imagine that they stood a chance of recouping their $30 per post by using the copyright they would have acquired. It’s not as though people buy collections of these things in bookstores. They have no appreciable economic worth. Thus, the authors of these posts — us — must be writing them for other reasons, and so the formalities, which are quite modest, have worked to distinguish between authors that would not create but for copyrights, and those that would create regardless of copyrights.

    It’s not really something you should find offensive. It’s just that the law cannot mandate that your works become famous, or well-recieved artistically, or satisfy your creative impulses, or otherwise fulfill non-economic reasons to create. Hell, they don’t even guarantee economic reward, they just set up a funnel to direct it should there happen to be any.

    Remember, the idea behind copyright is that the public interest should be maximally satisfied. The public interest consists of equal desires for: more original works to be created, more derivative works to be created, more works to be published, to not be restricted with regard to what they can do with those works, and to have minimal restrictions in terms of time and scope if there must be any. Without copyright, some of these desires are fully sated. Others, not so much. Adding them together, we see a net satisfaction, we’ll call A. If we add copyright, we are reducing the satisfaction of some of the interests in order to stimulate satisfaction of others. Different degrees of copyright (e.g. is the term 14+14 years or 95 years, is there an exception covering music or not, etc. will result in different net satisfactions B through Z. The goal is to find the greatest net satisfaction in the B through Z range, where it is also greater than A. The incentives used to stimulate creation and thus fulfill that desire of the public happens to be economic (paid for, essentially, by reducing fulfillment of the should-not-be-restricted desire) because as already noted, we can’t legislate fame. If we could in some reasonable way, I suppose we could put it on the table as well. But for now, we’re making do with the tools we’ve got.

  57. Jim Powers says:
    February 25, 2006 at 3:43 pm

    Ok, I’m back. No venom, no hostility.

    Now, as some of you have already taken note I’ve deposited quite a controversial notion in this thread of a civil disobedience action where I would promote piracy of copyrighted materials from “certain” companies that fortify and pursue a program of expanding copyright scope and powers in such a way as to be quantifiably more invasive into peoples lives then ever before in the history of mankind. Some may have noted that that I, in fact, do recognize this as a program of theft. I have also noted that should such a program be actually enacted that stopping it when some sort of “goal” was archived would be difficult to impossible at best.

    So, for those interested in thinking more about some sort of civil disobedience action I’ve gone back and reformulated my thinking into a set of requirements:

    1. What ever action is taken people should feel as if they are doing the right thing.

    2. It should be something that is easy to do.

    3. The action that is performed should be an action that everyone who participates feels should be a recognized and legitimate action.

    4. This action should have a publicly visible component, but need not actually have any real financial repercussions.

    What I am trying to get at with item 4 is that the action only need to be “bold”, or “defiant”, but it does not have to be financially punitive.

    What inspired me to think about this was Rosa Parks. By thinking about her action of sitting in the prohibited part of the bus it dawned on me that I have to come up with a civil disobedience action that results in legitimizing the action taken. I do not want to legitimize piracy. I want greater protections and expanded rights for the consumers of copyrighted materials.

    So a new idea, again inspired by programs like “read a banned book” would be to educate people how to and propagate the use of DRM removal software like hymn and DeCSS and get more people to transcode to something like OGG.

    There are similar programs like the “Gallery of CSS Descramblers” (http://www.cs.cmu.edu/~dst/DeCSS/Gallery/) for DeCSS, but I’m looking for something more applicable to the average person.

    Now many of you will still find this an objectionable program, but I am open to suggestions about how to pursue some form of action that meets the requirements stated above.

  58. Jim Powers says:
    February 25, 2006 at 4:08 pm

    Also, to get further discussion of any ideas regarding my last post I’ll look into setting up another place on the Web for those interested. No more freeloading off of Professor Lessig’s generosity.

  59. poptones says:
    February 25, 2006 at 8:09 pm

    You want attention? Picket intel with giant Tcpa signs. Crack TCPA. Point out, in newsgroups, websites hosted in russia and other free jurisdictions, and other any other online forums you can find where one can avoid prosecution, the ways in which tcpa can actually, quanitifably, be cracked.

    Note this does NOT mean going to slashdot and the “NO TCPA” forum and preaching to the addled choir about how this might possibly, someday, still allow “information leaks” (the prevention of which was never, in any way, a stated goal of tcpa) but actually means obtaining a tcpa protected platform, enabling it, and then breaking into the motherfucker. If there are really weaknesses to be found we (and the media conglomerates) need to know them now. This goal is perfectly valid from the perspective of advancing the state of the art.

    But destruction is pointless without something arising from the ashes. What we need – especially if you truly believe in that anarchist ethos of subverting oppression by those in an unfair position of power – is a reasonably robust system of securing some amount of trust within the commodity computing platform. That this ability might mean some would abuse it by locking away encrypted works in a manner that is inconsistent with the ideals of the classical american copyright system is irrelevant: some people will always find a way to abuse any amount of control given them but that doesn’t mean all systems of control are inherently immoral, evil, or whatever adjective you feel most valid to convey “bad” in an objective argument.

    SMS messaging has provided countless opportunities in developing nations; Indian peasants have been able to directly particpate in electronic commerce by exchanging goods for electronic currency and then redeeming that money, at exchange centers, directly from affordable cellphones which they are able to procure. The value of electronic exchange has been proven even among some of the most underpriviledged nations on earth. But SMS still relies upon channels of communications that may be “hijacked” and often are controlled by oppressive regimes and, therefore, this system of exchanged is still vulnerable in exactly the way physical donations of international aid may be hijacked by warlords as it is transported over local highways.

    Making truly robust encryption and means of securing reasonable levels of peer to peer trust would have the direct effect of undermining most existing channels of information control. The only way to undermine such a robust system of trust would be to prevent, completely, the proletariat from even being able to obtain commodity computing devices, for once they were obtained they could be linked together even if doing so meant having to employ sneakernets – transport of physical media from point to point (ie usb dongles carried in pockets).

    If open source software – linux – is truly about freedom (and not just “the right to do whatever the hell I want with any data, anywhere, any time I am able to physically obtain it, no matter how it is protected) then working with hardware manufacturers to help develop an open and (most important) reasonably robust means of drm should be a primary goal of the open source development community.

    Refusing to even debate this technology in a fair and objective manner (as the open source community has been to date) because its adoption might interfere with your ability to obtain infinite amounts of what may only be fairly described as junk food for the mind is to exert upon all oppressed peoples of the world the exact same priviledged exploitation by the elite that you accuse those big, bad media conglomerates of exerting upon you.

    Except…the media conglomerates are deciding who will and will not be able to listen to mariah. You, on the other hand, are deciding who does and does not get to eat.

    Sleep well tonight in your cozy and warm mcmansion, citizen.

  60. Josh Stratton says:
    February 25, 2006 at 9:18 pm

    poptones–
    What we need – especially if you truly believe in that anarchist ethos of subverting oppression by those in an unfair position of power – is a reasonably robust system of securing some amount of trust within the commodity computing platform. That this ability might mean some would abuse it by locking away encrypted works in a manner that is inconsistent with the ideals of the classical american copyright system is irrelevant: some people will always find a way to abuse any amount of control given them but that doesn’t mean all systems of control are inherently immoral, evil, or whatever adjective you feel most valid to convey “bad” in an objective argument.

    I would disagree with you here. DRM is overwhelmingly championed, designed, and implemented by those who wish to act inconsistently with the copyright system. It is not a sort of technology that incidentally has bad uses, but is one constructed around bad uses (i.e. acting as a private sort of copyright) and which may only incidentally have good uses (e.g. reducing the threat of malware). While technologies might not be inherently bad, I feel that DRM is the second-worst possible sort of technology dealing with creative works, information generally, etc. Any good implementation of it would have to be carefully designed to guard against bad uses. For example, trusted computing that guarded against malware (unless the user was really sure he wanted to run it) would be okay, but it would be abusive for it to act against benignly modified or pirated software (which the user is also probably sure he wants to run).

    I also think that you’re quite wrong as to whether anarchists would like DRM, but as I am not an anarchist, and as I find your rants tedious and confused when you get into political ideology territory, I’m not interested in discussing it.

    If there are really weaknesses to be found we (and the media conglomerates) need to know them now.

    Of course, from a strategic perspective, it would be better to not completely break such systems until the publishers et al had irrevocably committed to them. That way the attack has the greatest value for the attackers and, in line with the goals of the sorts of attackers we’re talking about, causes the greatest harm to the publishers et al.

    With regard to the idea of security and communications channels, etc., I’m certainly supportive of the idea that users might be able to ensure that other entities could not spy on their communications, etc. However, I’m also concerned that the same technologies could be used to prevent those users from communicating freely. Thus, I think it’s better to decentralize and to leave decisions in the hands of the users themselves.

    I also think that our goals when it comes to communications, computer security, financial transactions, etc. are radically different from our goals when it comes to the copyright system. So, because I think privacy is important, I think that users should be able to encrypt things they write or communications they engage in. But I also think that having creative works available for use, reproduction, modification, etc. as the law permits is also important, and so I support allowing people to use encryption however they like, but for copyrights to only be granted where works are not encrypted. (Publication of encrypted works would be fine, but they’d be uncopyrightable; authors could decide what road they wanted to follow)

    Our policies can differ, or even be opposed, because they deal with different areas. It’s much like how we try to balance the need for transparancy in government with the need for secrecy in certain national security matters.

    I think that the comunities you’re pointing fingers at have done a decent job of treating disparate issues differently. Your objection is that you want a single solution for everything, though I think you’ve arrived at that in an intellectually dishonest way by taking your unwavering support for DRM in the creative works area and looking for ways to sneak in the back door, such as by the computer security area.

  61. poptones says:
    February 25, 2006 at 10:33 pm

    DRM is overwhelmingly championed, designed, and implemented by those who wish to act inconsistently with the copyright system.

    This is circular logic at its finest. You, as a representative member of the open source community (and you are, whether you like it or not, because your naive views on this are entirely representative of those espoused by the greater community at large), refuse to acknowledge the greatewr scope of this issue and, therefore, refuse to particpate in its development.

    In that vacuum of input from those who give lip service to ideals about “freedom,” leave those corporate conglomerates free to steer the development as they see fit. And they, unlike “us,” do not give a damn about creating peered technology that will allow individuals to usurp existing channels of control because they already control them.

    Problem is, those channels of control only connect about twelve percent of the planet. Corporations don’t care; corporations are about generating profit, and that other 80 odd percent doesn’t have any money, anyway.

    It is not a sort of technology that incidentally has bad uses, but is one constructed around bad uses (i.e. acting as a private sort of copyright) and which may only incidentally have good uses (e.g. reducing the threat of malware).

    OK, how can you not, after 60 fucking posts in this discussion, not see how entirely ignorant that assertion really is? Digital rights management has vastly greater potential to do good in the world than to do harm. You are speaking only from the perspective of the wired elite. what you fail to recognize is we are the information elite I don’t care if you’re living on welfare in a 2×4 shack, the fact you are sitting in front of a computer right now, reading this in the warm glow of a monitor, makes you part of that elite. Billions of people tonight do not have that opportunity and a vast majority of them cannot even fathom such a life of priviledge.

    You are denying the creative potential of 80 percent of the people on this planet in order that you might enjoy the selfish “right” to deface mariah as you see fit. It’s fucking obscene to reduce this argument to such trivial concerns.

    While technologies might not be inherently bad, I feel that DRM is the second-worst possible sort of technology dealing with creative works, information generally, etc. Any good implementation of it would have to be carefully designed to guard against bad uses.

    And again you dictate from our cozy confines exactly the oppressive control which you claim to revile. that some people may make unfair use of this technology with embodiment of knowledge which they themselve have produced does not give you the right to decide for Billions of people they should not be allowed to make positive use of it. gun kill people, but guns kill food, too. You are arguing that Billions of starving people should be denied the ability to obtain food for their families because some of us might be subjected to inappropriate uses of a technology.

    This is why we have laws to deal with those who need to be removed from society. If the laws need to be changed, fight to change the fucking laws.

    For example, trusted computing that guarded against malware (unless the user was really sure he wanted to run it) would be okay, but it would be abusive for it to act against benignly modified or pirated software (which the user is also probably sure he wants to run).

    Again: laws. This is what they are for. The Sony fiasco might well have happened even in a “trusted” environ because people trusted Sony not to fuck up their machines. The one saving grace might have been that, on trusted platforms, Sony’s “rootkit” would only have been able to attack data on user’s hard drives that Sony itself had created.

    I also think that you’re quite wrong as to whether anarchists would like DRM, but as I am not an anarchist, and as I find your rants tedious and confused when you get into political ideology territory, I’m not interested in discussing it.

    I’m sorry you are confused – but I never asserted whether anarchists would or would not like DRM. I do believe most would not, however, since a large segment of the open source community – Richard Stallman being the most notable – do, in fact, espouse ideals that may be roughly equated with information anarachy – and we all know where he stands on the issue.

    Of course, from a strategic perspective, it would be better to not completely break such systems until the publishers et al had irrevocably committed to them.

    Only if your “strategy” is, at the same time, to destroy the value of the handfulls of electronic “credits” those starving peasants had worked all year to earn. Congratulations, you just killed a hundred thousand people who won’t be able to buy food again until, oh, 2008.

    You may disagree with me, but if I’m wrong then the fucking UN is wrong. The collected idealistic representatives of five Bilion starving people agree with me, but maybe you really do know more than them…

    With regard to the idea of security and communications channels, etc., I’m certainly supportive of the idea that users might be able to ensure that other entities could not spy on their communications, etc. However, I’m also concerned that the same technologies could be used to prevent those users from communicating freely.

    Duh. We already areprevented from communicating freely. Look around the internet – it’s a fucking propoganada machine for white middle class american judeochristian dogma. Artists are afraid to post a picture of a naked little girl frolicking in the surf because they fear being abducted from their homes half a world away by the american justice league.

    If I can sell you a piece of art I created – a piece of art that does not, in any way, violate local standards of decency – and I can be reasonably assured that you will; not be able to post it in public places where the global thought police might find it and track me, I am going to be a hell of a lot more likely to share my expressions of knowledge

    Can you not see this? Information anarchy only fosters existing structures of control. You, as a member of the information elite, are embracing that control. And you are doing for purely selfish reasons.

    I also think that having creative works available for use, reproduction, modification, etc. as the law permits is also important

    Then if you would be unable to do this at present in a world of perfect DRM, fight to change the fucking laws. There, now you have a mission and potentially a new career. Congratulations.

    and so I support allowing people to use encryption however they like…

    Listen to yourself: I support allowing others to do as I like…

    but for copyrights to only be granted where works are not encrypted.

    So now I sell you one of my creations, in encrypted form, but I am not allowed to claim copyright on it in my jurisdiction, where my work is perfectly acceptable and legal? And what happens to my work when global cultural ideals change and it is more acceptable to share this expression? By refusing to recognize rights on encrypted works and encouraging the social acceptance of cracking such protections, you have again stifled me – you have done exactly what you accuse those evil corporations of doing because you have denied me an ability to share my work, in a reasonably safe fashion, with others who share my values and views. Then you have violated me a second time by denying me copyright on the very work that you were able to crack and republish.

    Tell me: How does it feel to be King?

    We are the information elite. We have a responsibility to those who do not presently share our opportunities. By ignoring this shared responsibility, you are embracing tyrany.

  62. poptones says:
    February 26, 2006 at 12:28 am

    Hey Josh…

    Your objection is that you want a single solution for everything, though I think you’ve arrived at that in an intellectually dishonest way by taking your unwavering support for DRM in the creative works area and looking for ways to sneak in the back door, such as by the computer security area.

    I don’t have unwavering support for DRM. However, DRM is mandatory if we are to have a truly free system of global expression because of the risk of regional governments with overwhelming authority being able to inflict their views upon anyone they do not agree with. In my example about the artists not offering pictures of naked little girls playing in the surf I am not just trying to be inflammatory and link this to child sexual coerscion and exploitation – I know a very well known photographer and he told me exactly this in a private conversation. He lives half a world away where prudish western views are not shared and yet he deliberately censors himself because he literally fears being given the noriega treatment. Barring that extreme he still must censor himself to comply with perverse ideals of a government having no direct authority over him because, if he doesn’t comply, they will disconnect him from the channels of communications they control – they will strip him of his ability to engage in online commerce.

    You may argue you think it’s best we don’t have pictures of naked little girls frolicking in the surf and that I should be welcome to try to change the fucking laws just as I have challenged you to do. That’s fine – problem is, because of the control those in authority exert over the channels of communication I am severely inhibited from sharing my views on the matter in public in a way which might allow me to organize a lobbying force to work toward that goal. It is censorship at its finest – indirect authority equals global control.

    You might also argue those who live haf a world away and do not share this prudish ideal need to be educated in the errors of their ways. Problem there AGAIN is that, because most of those people do not share this forum – because they, by and large, are economically disadvantaged and the only people who learn how to work in this community end up leaving the country, they never get to hear your views, either. by squashing out the speech we don’t like and not providing an opportunity for those of diffent views to voice their creative expression, we inflict rather than agree – we become tyrants.

    The reason I embrace total control in DRM is because it needs to be this way in order to allow those holding regionally or even globally unpopular ideals to communicate and organize themselves in a manner that would let them better be heard.

    In a truly general purpose computing environment any system that allowed that level of control for some embodiments would essentially and inherently allow such control for all embodiments. That means just as I, from half a world away, can “sell” you a picture of someone’s daughter frolicking in the surf that you are unable to publically share in exchange for currency which may be transferred directly to me outside your oppressive government’s channels of financial control, so too can Sony publish a hundred million Alicia keyes videos that, likewise, cannot in any way be “remixed.”

    What about this? What if we, in this cultue of the information elite, enact laws that say “OK, if you are going to broadcast works – that means you offer them to the greater public at large as opposed to just privately and in limited number where their direct cultural influence will be lessened – then you are bound by law to explicitly allow these certain rights, which the representatives of this culture have agreed are fair and just, to the greater population of this culture?

    What if we say, in echange for these rights – for example, the right to disallow the public at large from reproducing entire works you have created and repurposing or rebroadcasting them – you in turn grant the people of the culture which you influence the explicit right to repurpose ample and meaningful portions of those works in their own creative expressions? You have the ability to lock these broadcasted works down, sure – but if you exert an unacceptable level of coerscion upon our culture we will financially penalize you.

    Does that break down the wall?

    Now can we seriously talk about creating an open sourced and deliberately robust peer to peer engaged system of digital rights mangement?

    Now can we save the world?

  63. Jim Powers says:
    February 26, 2006 at 7:51 am

    poptones,

    Your menu:

    A) Free software:

    1. download source.
    2. Check MD5s
    3. Check SHAs
    4. Build

    (Gentoo does this and will not built if the checksums don’t add up)

    Still not “sure” about what you have? Read the source. Find the hacked-in back door. Tell everyone.

    Still not “sure” print out the source, find the author, pay the author to go over the source and audit it. Don’t trust the author? Pay someone else to audit the source.

    Do this all the way down to the bios for all I care.

    On some machines you can use linux bios ROMs so you can audit that as well.

    Repeat this process until you are “sure” your clean.

    B) TCPA:

    1. Download source, oops can’t do that
    2. Check MD5s, nope
    3. Check SHAs, nope
    4. Build, nope

    Still not “sure” about what you have? Read the source. (again, no) Find the hacked-in back door. (Nope, actually illegal). Tell everyone. (Nope, nothing to tell, go to jail)

    Still not “sure” print out the source (nope), find the author (maybe, but you have nothing in hand and their NDA and employment agreement complells them to tell you nothing more than that which is already public knowledge), pay the author to go over the source and audit it. Don’t trust the author? (YEP!!, I don’t know what back doors are in there, I don’t know what the TCPA has done to enable the NSA or the HSA to have backdoors into my stuff) Pay someone else to audit the source. (Nope)

    Do this all the way down to the bios for all I care. (nope)

    On some machines you can use linux bios ROMs so you can audit that as well. (not applicable)

    Repeat this process until you are “sure” your clean. (never even got started)

    Choose: item A or item B but not both.

    Further:

    When B GETS hacked then what? As Josh has already pointed out you have a massive sleeping hole! So I guess that TCPA hypervisor can be flashed over, so it doesn’t get completely baked in. Um, a security hole?

    Further more:

    Even the best of the best encryption schemes have been getting chinked away at over the years. Don’t get me wrong, cracking the current crop of “good” encryption schemes is stupendously hard work. The purveyors of encryption systems are very smart people are are doing their best to make a good-faith effort to make good on their work. But I “trust” free (as in libre) more solutions more. I trust that whistle-blowers are more likely to emerge from the folks engaged in the “free software” world than those beholden to a large corporate engines, that have ALREADY begun in engaging in activities I ALREADY disagree with.

    We have already seen this before, this kind of market subversion has been played out over and over: drugs put on the market after cover-up of clinical trial data and manufacturing defects (Shering-Plough, comes to mind), the original secure HTTP implementation from Netscape that was relatively easily cracked despite the “protection by obscurity” approach. These two examples represent 0% of the total number examples that can be played out here.

    Further further more:

    I want to retain my ability to move, as quickly and as often as I want to schemes of encryption and protection I deem worthwhile. You’ll say TCPA doesn’t prevent me from doing that. That is true. But while I have software with baked-in dependencies on using TCPA to access data as the default mechanism I can remain vulnerable to real or theoretical security failures. I want to move to encryption schemes when I feel the need arises. I don’t want to be beholden to the time-line of others to feel “safe”, especially, when I question the motives and processes that are involved in their decision-making processes as they relate to updating their system. I mean really, the T in TCPA means “Trusted” can you imaging the public relations nightmare when time after time their system becomes periodically “Untrusted”. You think that these folks are going to be wicked-fast responsive? And what would that mean? An exploit probably has to emerge first before the BEGIN the fix. This is true of ANY encryption/security scheme, but I simply have more TRUST in the “free software” approach that AS SOON AS THE EXPLOIT is found it will be publicized and I can take IMEDIATE protective actions. Even if the TCPA IMMEDIATELY publicized an exploit THERE MAY BE LITTLE TO NOTHING I CAN DO TO PROTECT MYSELF aside from draconian measure like disconnecting my computer from the net until a fix is released. Can you imagine what this would mean to companies using TCPA for say corporate e-mail: taking entire companies off-line until a fix becomes available. Then you have to got each machine and flash it. We have already seen Microsoft do their best to quash publicizing flaws in Windows. I expect no less than that from the TCPA.

    There is also a substantial defense from the situation of having uncomfortable and potentially long-term sustained holes in your computer’s security by avoiding the “monoculture” as biologists like to style it. Survival of species often is dependent of millions of differences that increase the probability of staving off a potential environmental or genetic attack. This attitude is precisely why Akamai uses many different systems (Windows, Linux, BSD, Solaris, etc) in their content delivery network.

    I simply don’t buy your line of reasoning.

  64. Jim Powers says:
    February 26, 2006 at 9:40 am

    Another note to popones, (with the deliberate intentions of trying to bridge the gap and return to some form of even-headed discussion of the matters so far brought up in this thread).

    With regard to the “good” and “bad” effects of DRM, or more accurately, mandatory DRM, I think you already acknowledge that this issue really is a matter of opinion. I think that you feel that both the logic and the evidence weights in on the side of mandatory DRM being a “good” thing. Others disagree, including me. Mandatory DRM has been with us an incredibly short time and I argue that the evidence definitively indifferent with regard to the “goodness” of mandatory DRM economically. Both sides of this debate can site endless studies, research, and other supporting evidence to prop-up their view. I simply don’t think we are going to further the debate this way.

    It really comes down to the kind of world you want to live in. Even supposing that mandatory DRM has some sort of net positive economic effect, I still don’t like it. I hate to use hot-button examples like “Hitler” and “Slavery”, so please forgive me, but slavery utilized by US states pre-emancipation had “good” economic results. In fact, slavery and forced labor still has “good” economic effects which is why it is still a problem, but generally speaking most of the world, or at least most of the “enlightened” (for some appropriate definition of “enlightenment”) parts of the world would forgo these economic benefits to protect human rights.

    In this vein I see mandatory DRM giving too much power to the copyright holders and compelling consumers to comply to the copyright holder’s wishes. We have, as well as MANY others, gone back and forth banging each other’s head with words like “infringement”. This is the language substantially used by the courts. The courts are left to decide issues about how “infringement” and “non-infringement” balance out based on arguments presented. The “infringements” that we are talking about are “infringement” of the rights of the copyright holder, not generally speaking (with very few exceptions, parody for example), the rights if the consumer of a copyrighted work. I want to see something like an explicit “copyright consumer’s bill of rights”. I want the courts to have some explicit language and an explicit legal construct that enables a check and balance of copyright power.

    Josh pointed out that copyright is essentially economic in nature, although it doesn’t stop there. The recent filing at the DMCA review hearing by the RIAA tries to chip away at what little fair-use rights remain to consumers. Citing that even backup of a copyrighted work, which is infringement, is really not necessary because replacements are available at a reasonable cost. As you could probably predict, I reject this argument. Suppose my house burns down: my collection of copies of copyrighted materials can be substantial and the sum-total cost to replace these copies (some of which may be literally irreplaceable) can be substantial. You turn around and say that’s what insurance is for. But I say to that that it is not the prerogative of the copyright holder to decide HOW I will protect my investment of copies of copyrighted materials. This is yet another unintended consequence of mandatory DRM. I can make electronic copies of stuff, maybe even transcode to new formats and keep that at an off-site location. Mandatory DRM says no, go to jail. I want language in the law that says explicitly YES you can do this!

    I will stop here as my kids want to go out and play, but I haven’t even started on discussing the substantial, perfectly legal, secondary markets that can result in the world where we have a meaningful “copyright consumer’s bill of rights”.

  65. poptones says:
    February 26, 2006 at 10:22 am

    Blah blah… Jim, it doesn’t surpise me at all that you should object to even reasonable compromise on the issue – duh, as I have said all along, your intentions and motives here are quite obvious: your “right to remix” takes priority over all the starvation in the world… fuck’em.

    Good for you.

    Oh, by the way., you’re also completely wrong (there’s that word again) about the code and source requirements in a tcpa world. But I won’t take the time to explain why yet again as your dogmatic stance on the issue renders you completely irrelevant.

    Next?

  66. Matt C says:
    February 26, 2006 at 11:02 am

    poptones:

    i like some of the stuff you’re saying, but some of it not so much. In particular:
    Have you said people should not be “allowed” to subvert/dilute the value of other people’s creative work? I don’t follow.

    If, e.g. I discover that lots of Sony CDs have rootkit software on them, and I publicize this info, it may more-or-less destroy the marketplace value of several million CDs.

    But the question as to whether I’m “allowed” to publicize this revolves around the veracity of the claim — not its impact on the value of assorted commodities floating around in the market.

  67. Jim Powers says:
    February 26, 2006 at 11:19 am

    poptones,

    I am sorry you feel this way, but those characterizations are not accurate on both accounts.

    You are not the only one who wants to do some sort of good in the world, and you are not the only one who has access to and read the TCPA spec at the Trusted Computer Group’s Web site (for those who want to look here you go: https://www.trustedcomputinggroup.org/home). Our main points of contention are the implication of the use of what is being spected out, and ultimately offered. My issue is that I don’t ultimately trust the TCG and the firms that contribute to its efforts. It has never been my intention to disassemble all of the technical aspects of the TCPA and point out: “look, here on page 65 of such and such a document is where the user gets screwed” in the context of this forum; there are other forums for that.

    Sufficed to say that there is a lot to dislike about baked-in security like what the TCG is planning.

    Now, I would have less trouble with the TCG offerings, if, instead of what is being planned which is to default ship new computers with TCG components built in, and like you said, not activated, that the purchaser could choose to have the TCG hardware components included in their system at their option. I would prefer that the TCG offerings be exactly at the same competitive level as offerings from competitors. But the TCG offerings are getting preferential treatment and are being included as a built-in option like Wi-Fi. This built-in property has media and software companies salivating because it is only a matter of time before they can assume it’s existence and exploit that to their advantage such as compelling the user to activate the TCG components on their computer to have access to some file despite the fact that the person may feel reticent to do so. I can understand the use of TCG hardware when I and another party have negotiated and agreed to this, I cannot accept it when that requirement is imposed and it is otherwise illegal for me to pursue other options. It is this aspect of built-in-ness that people don’t like. This built-in-ness is happening to cater to companies that want to compel people to use their copyrighted materials in only ways the publisher deems appropriate or allowable.

    This said, we actually don’t disagree about the technical aspects of the TCPA, only on: 1) the implications of one particular use of of this system 2) that because of this particular use (needed to access copyrighted materials to be published in the future) the TCPA components pre-shipped in their systems will need to be activated. 3) Once activated these “trusted” components can be compromised. 4) Once compromised the word “trusted” no longer applies.

    The consumer is left with no legal choices to access copyrighted materials the the world where TCPA-enabled DRM, which by law you cannot circumvent, is required, and by requiring it users can wind up decreasing the security of their computing environment.

    So, where I am going with this is remove the link that can connect mandatory DRM and potential security holes, this linkage is not necessary. Let TCPA happen and let users negotiate between each other as to if and how they wish to use it. But if users decide not to use TCPA then they are not locked out of a media market by default, especially if they are willing to pay and otherwise act in what should be recognized as a legal manner.

  68. Josh Stratton says:
    February 26, 2006 at 12:03 pm

    Poptones–
    and, therefore, refuse to particpate in its development

    That strikes me as a rather bizarre argument. If I were opposed to the atomic bomb, you would say that the appropriate thing to do would be to help make atomic bombs in the hope of finding one that I could live with, despite the fact that I could never live with them. You would have people be quislings, basically. I, on the other hand, think that there are two appropriate things for opponents of DRM to do. The first is to not help the pro-DRM cause. I’ll mention the second presently.

    leave those corporate conglomerates free to steer the development as they see fit

    The second is to not only refuse to be involved with helping DRM along, but to actively oppose DRM so that those that support it, whether they are publishers or you, are stymied. Personally, my method for attacking DRM is to starve it by pushing for legal reforms that would make copyrights and DRM mutually exclusive. I think that if a movie studio has to choose between DRM in order to protect themselves, or copyright, they’ll choose copyright. This means that they are no longer able to significantly promote DRM as they would be afraid to use it and thus disinclined to invest in it since it’s of no use to them unless it is perfect and there are no weaker links in the chain for attackers to exploit (e.g. the analog hole, leaks of un-DRMed copies from the studio, etc.). Envisioning that even this might not be good enough, I also support the idea that the Copyright Office coordinate efforts to crack DRM as a public service, since this would result in many public domain works becoming more available to the public. Possibly a bounty system could be established (NASA has something similar for some back burner projects), or spare interns from the NSA could assist, who knows. The idea is that government would not only permit attacks on DRM, but in certain scenarios would encourage or assist such attacks.

    This would result in DRM being lawful for authors to use, but unappealing as a practical matter. It would also tend to have no effect on such technologies being applied in other fields. Trusted computing would not be of much use to movie studios to prevent piracy, but could still be desirable as a very voluntary, very granular thing, to help users avoid attacks by malware.

    Digital rights management has vastly greater potential to do good in the world than to do harm.

    I absolutely disagree. I think it is extremely dangerous at best, and I would not shed a tear if it was completely abandoned due to having been an unredeemably bad idea. And I say this having studied the issue for years, having a good grounding in copyright law and the theory behind it, having some technical chops, etc. You may disagree with my position, but it is not arrived at through ignorance.

    You are denying the creative potential of 80 percent of the people on this planet in order that you might enjoy the selfish “right” to deface mariah as you see fit. It’s fucking obscene to reduce this argument to such trivial concerns.

    I disagree. First, I think that a significant amount of the creative potential of those people also consists of creating derivative works. This means that if they are unable to modify Mariah Carey songs, they are being deprived of opportunities, and you are the one supporting that.

    Second, I think that DRM does not foster creativity. As already noted, there are various factors that incentivize creation. I think that traditional copyright adequately provides an incentive.

    Third, I think that where we provide artificial incentives such as copyright (artistic satisfaction would be a more natural incentive; we don’t and can’t provide it by the law or technology), we must limit the cost of providing those incentives in proportion to the benefit conferred. If I cannot arbitrarily modify a Mariah Carey song, this is an imposition on my liberty; it is a cost. I must receive a benefit greater to me in exchange for giving up this portion of my free speech right, or else I will not tolerate the imposition at all. Copyright should not strive to help artists, it should strive to help the public as a whole. It should leave the public better off than it would be without it. In doing so it may also leave artists better off than they would be without it, but that’s secondary. I think that traditional copyright is much much better at this than DRM because the law is more uniform (e.g. term lengths), while also more flexible (e.g. fair use, the possibility of legislative modification or changed judicial precedents), more attentive to the public interest (Congress is a political body), and more likely to correspond to the norms of the public with regards to what is appropriate and what is not in the realm of creative works (unlike DRM, which is something authors can just impose unilaterally).

    Fourth, DRM is a technology much beloved of the rent-seeker. It is inherently hostile to those authors who are not in the publishing establishment because DRM is not able to distinguish between authorized and unauthorized reproduction, distribution, etc. Consider the example of DAT. Due to the AHRA, which mandates a form of DRM known as SCMS, a person with an ordinary DAT deck is limited as to how he can make copies. He can make as many copies of a first generation DAT tape as he likes. However, he cannot make any copies of a second generation DAT tape (that is, one of the aforementioned copies) at all. Only users with commercial DAT hardware, which costs more and is not as widely available, can make copies of any generation of tape. An established artist can afford the more expensive unrestricted equipment. A new, struggling artist cannot. This means that even if a struggling artist tries to make copies himself, or authorizes others to do so, using the low-end gear, they cannot due to the artificial limits built into the equiment. DRM is acting contrary to the author’s wishes. This is an inherent flaw in DRM, not a technical flaw that could be corrected with other technology. It arises in the case of authorization that doesn’t go through the limited channels the DRM system is aware of (e.g. oral authorization, implied authorization), it arises when authors need to use low end equipment or forget or lose whatever token distinguishes them as authors to the DRM machine, etc. It is not something that can be overcome.

    Fifth, traditional copyright is more flexible, largely because while DRM unrelentingly forbids up front, copyright infringement must be pursued after the fact, allowing lawful actions to occur, while still eventually dealing with the unlawful ones. Copyright is administered by humans, who are more trustworthy than machines, and more able to deal with changed circumstances and policies. In this field, I ultimately trust people and time more than instant judgments made by preprogrammed and unvarying machines. It’s basically the same reason that we have courts, lawyers, judges, and juries, instead of Judge-O-Matics.

    embodiment of knowledge

    You keep using this and related malapropisms, and it is bugging me. The term of art you want is ‘expression,’ as in ‘the idea/expression dichotomy’ which is central to the subject matter of copyright. Alternatively, you might say ‘creative work’ since only those are copyrightable.

    gun kill people, but guns kill food, too. You are arguing that Billions of starving people should be denied the ability to obtain food for their families because some of us might be subjected to inappropriate uses of a technology.

    No. Following your analogy, I am arguing that the overwhelming use of guns is to kill people, and that very few people actually use it to hunt for food, and that fewer still actually rely on it to get food; most farm, or go to a store, or receive charity. I am then arguing that we should strongly discourage the use of guns to kill people, while still allowing people to use it to get food — even though hardly anyone does use it for food. I am not, however, suggesting that guns be made illegal, because I respect gun rights.

    If the laws need to be changed, fight to change the fucking laws.

    I agree. That’s why my goal has been to change the law so that DRM in the copyright sphere is so strongly discouraged that no one will bother implementing it for creative works (though they can if they want).

    I never asserted whether anarchists would or would not like DRM

    No, you recently said “What we need – especially if you truly believe in that anarchist ethos of subverting oppression by those in an unfair position of power – is a reasonably robust system of securing some amount of trust within the commodity computing platform.” I don’t want to get into whether you’re right or not, but you did say that people who believe in anarchism would desire DRM.

    Only if your “strategy” is, at the same time, to destroy the value of the handfulls of electronic “credits” those starving peasants had worked all year to earn.

    Well, DVD is a good example of such a strategy. DVDs hit shelves in 1996, and began to become affordable in 1999 (when DVD players began to enter the VCR price range and major retailers began carrying the discs). In late 1999, DeCSS came along and utterly broke the DRM being used. Of course, hardware was still such that movie trading and end user piracy didn’t immediately catch on (even today, hardly anyone copies to dual layer DVDR) but ultimately it did. Now, I ask you, how many starving peasants made CSS-encrypted DVDs, and how adversely were they hit by piracy made possible by DeCSS? I’m betting the number — you do have hard dollar figures for this, right? — is quite low. Especially compared with big studios.

    Regarding your UN comment, I agree with the UN that knowledge sharing is good. And I think that knowledge sharing is best advanced by killing DRM until it is dead, dead, dead, at least with regard to creative works. Knowledge sharing is a laudable goal, but DRM is opposed to it. I know which one I side with.

    Duh. We already areprevented from communicating freely. Look around the internet – it’s a fucking propoganada machine for white middle class american judeochristian dogma. Artists are afraid to post a picture of a naked little girl frolicking in the surf because they fear being abducted from their homes half a world away by the american justice league.

    If I can sell you a piece of art I created – a piece of art that does not, in any way, violate local standards of decency – and I can be reasonably assured that you will; not be able to post it in public places where the global thought police might find it and track me, I am going to be a hell of a lot more likely to share my expressions of knowledge

    Can you not see this?

    I can see that you’re paranoid, and possibly creepy. I agree that there are problems with adherence to the ideal of free speech with regard to the Internet, and that these problems exist to varying degrees worldwide. But DRM is not the answer. It also is not an answer to the hypo you set up; governments are not going to permit DRM systems to impair their own investigations or exercises of power, and can trivially pressure those that create DRM into giving them the keys to the kingdom, and can bring tremendous forces to bear against DRM systems if they choose. Weak link attacks (e.g. why try to break DRM when a keystroke logger or hidden camera can record you entering your password) are also available.

    I have no problem with helping individuals secure their communications against their governments, particularly in the case of nasty governments (e.g. Saudi Arabia, China, North Korea), but the stakes get a lot higher and you have to approach the issue more pragmatically. DRM has no place in that discussion, and it’s not a discussion that’s interesting in this thread. Perhaps Prof. Lessig will start a new one, or perhaps you could start or join one elsewhere, but that’s not the subject here and now.

    and so I support allowing people to use encryption however they like…

    I support allowing others to do as I like…

    You know, it’s mostly amusing and sad when you contradict yourself. But I do not like it when you quote me and then immediately claim that I said the opposite of what you yourself have pointed out that I said.

    To repeat my point: Under the law I propose, an author would be free to publish a book in any format, and with any form of DRM he liked. It could be weak, it could be strong, it could be commonplace, it could be unique, it could be unencumbered by DRM; the choice is entirely up to him. Whichever way he goes, he will not be censored or face any kind of punishment whatsoever for his choice of DRM or no DRM.

    However, if he chooses no DRM, he will be rewarded with a copyright (assuming the work is copyrightable otherwise, naturally). If he chooses DRM, he will not receive this reward.

    An analogy might be how the government tries to encourage people to get hybrid cars. If you buy a hybrid car, you get a tax break. If you do not, you don’t get that tax break. People can choose what kind of car to buy, or whether or not to buy a car at all. But only one choice has the special bonus attached to it, because the government has a particular policy of encouraging energy efficiency. In the DRM/no-DRM scenario, the policy is one of encouraging works to be published without DRM since those works are more valuable to the public, all else being equal.

    So now I sell you one of my creations, in encrypted form, but I am not allowed to claim copyright on it in my jurisdiction, where my work is perfectly acceptable and legal?

    I am unsure as to whether you are still referencing your creepy naked child picture example. I will assume that you are not. I will further modify the hypo to make it an intranational hypo, since I don’t think that having multiple jurisdictions is useful, given the aforementioned assumption.

    So: if you publish a work with DRM, then you would not get a copyright on that work. The work is in the public domain. The DRM might pose a practical challenge to me, if I wanted to share it with others, modify it, etc., but I would face no legal obstacles. Eventually, if I cared to, I expect I would either break the DRM or effectively circumvent it (e.g. photographing the screen or something) and your work would then be shared freely by everyone that cared to do so.

    In the meantime, you could freely sell DRMed copies of your work to anyone that wanted one. Until the DRM is broken or circumvented, you would not face competition for copies of the same work. But once the DRM was defeated, since there are no rational customers who actually desire buying DRMed copies when they can lawfully get non-DRMed copies for free or at marginal cost, you will basically lose your market until you match the value of the non-DRMed copies, and even then, you’re operating at free or marginal cost.

    Alternatively, you could publish your work without DRM, in which case you could have a copyright on it. This would mean that while I would not face any technical hurdles in copying your work, etc., and would be free to do so to the extent permitted by law, if I broke the law, you could then sue me for damages, injunctive relief, etc. Ditto for anyone else that broke the law with respect to your work.

    you have denied me an ability to share my work

    No, I absolutely have not. You have equal abilities to publish your work with or without DRM. The choice of which route you wish to take is yours, and yours alone. I merely have a preference as to how I would like you to do it, and I will give you extra help if you do it that way. If you don’t want to do it that way, you are free to make that decision, but I will not help you, since it would be contrary to my own interests. I am acting in a self-interested fashion, and I expect you to do the same. There is no altruism, and there is no hostility; only a choice between self-reliance in the face of opposing interests or alternatively of cooperation for mutual benefit. (And remember, where I say ‘I,’ I mean ‘the public’: The public is not interfering with your choice, and the public is willing to help you, but only when it is in their interest to do so.)

    I don’t have unwavering support for DRM.

    Well I have yet to see you say that you do not support DRM in certain scenarios. You’ve been promoting it as a cure for all ills, much like the snake-oil salesmen of yore.

    The reason I embrace total control in DRM is because it needs to be this way in order to allow those holding regionally or even globally unpopular ideals to communicate and organize themselves in a manner that would let them better be heard.

    And there are two key problems here. First, incentivizing authors and defeating censorship are basically unrelated problems with different solutions. In fact, they very likely have opposite solutions, since a copyright monopoly consists of an author having the ability to censor what third parties do in connection to his work, to a degree. The author wishes to censor unauthorized reproductions, etc. so that he can monopolize the profit to be made from the work. An attack on censorship, on the other hand, involves ensuring that no one, not even the author, can impair free communication, for fear that they will abuse this.

    DRM is a censor’s dream come true. If DRM is manditory — as you say it should be — then the government censor does not have to worry about people having the ability to communicate outside of the DRM system. This means that if the government wants to prohibit people sending emails about some atrocity, they can flip a switch and their entire population is deprived of the ability to send mail without it having been read by the government and authorized on a case-by-case basis.

    Your basic premise is that individuals will somehow build a robust DRM system that they can use to ensure that government cannot spy upon them. Setting aside that this means the system is not at all manditory — because it takes the power of government to make it manditory — you are suffering from a pipe dream power fantasy. The kind of governments such a thing would be used against will not allow it to come to pass. They will have more resources than you, they will have methods of attacking weak links (e.g. by bugging you, if it’s too hard to intercept your communications in the middle), etc. I fully support bringing down tolitarian governments, and protecting free speech fully everywhere, but it is totally clear to me that you have no idea what the hell you’re talking about.

    That is why I think you support DRM in the copyright sphere, and you are making up reasons why it might be desirable for other applications, since it’s obviously so bad when viewed from a position of copyright policy. Unfortunately, because voluntary security, implemented as-needed, with flexibility as to technique (which is just the thing outlaws and revolutionaries need) is no good when your aim is to censor people when their speech involves some aspect of a copyrighted work, you can’t even make up convincing arguments as to these other applications.

    You’re basically acting as a shill for publishers, etc., maybe in the traditional sense or maybe because you think it serves your own interests, or God forbid, because you believe in your own line of crap. In any event, we know you are utterly uninterested in an honest, reasonable argument. Please stop shilling, or at least shill better.

    so too can Sony publish a hundred million Alicia keyes videos that, likewise, cannot in any way be “remixed.”

    What about this? What if we, in this cultue of the information elite, enact laws that say “OK, if you are going to broadcast works – that means you offer them to the greater public at large as opposed to just privately and in limited number where their direct cultural influence will be lessened – then you are bound by law to explicitly allow these certain rights, which the representatives of this culture have agreed are fair and just, to the greater population of this culture?

    What if we say, in echange for these rights – for example, the right to disallow the public at large from reproducing entire works you have created and repurposing or rebroadcasting them – you in turn grant the people of the culture which you influence the explicit right to repurpose ample and meaningful portions of those works in their own creative expressions? You have the ability to lock these broadcasted works down, sure – but if you exert an unacceptable level of coerscion upon our culture we will financially penalize you.

    Well, it’s all topsy-turvy and backwards. For example, it will stagnate, and is very much not in the common law tradition, because it prohibits anything not specifically allowed. The proper thing to do is to allow anything not specifically prohibited. Thus, people a hundred years ago had the idea of fair use already, but didn’t have VCRs and didn’t imagine VCRs. When they finally arrived, it was thanks to laxity and adaptability in the system that allowed them to arrive, be implemented and demonstrate their value, and then receive a pass. Do it the other way, and there is no incentive to allow for new ideas and new uses, and they never get to show how useful they can be.

    Another example is that it supposes that copyright holders have inherent copyrights. Nothing could be further from the truth. Copyrights are granted by the public, to the extent that the public is willing to do so. If the public, through their servants in Congress, decided that from now on, copyright was going to include an exception that allowed unlimited reproduction and distribution between 9am-10am local time, then it would. Copyright holders might be very upset about this, but they are not granting rights to the public. The public is declining to give them rights that would otherwise impair the exception. Copyright holders could give up some of the rights they’ve been given, of course, but that’s best left to a case-by-case sort of thing, as different entities will have different needs with different solutions; it cannot be expected that they will all voluntarily act the same. So mass reform through legislative action is needed, and it works as already described — giving some rights to copyright holders while retaining the others to ourselves, rather than asking for rights back.

    Also direct financial penalties are inappropriate. The reason I don’t suggest banning DRM, as much as I would like to see that happen, is because I think that freedom of speech requires that people be free to use it. However, I’m certainly not going to reward them for using it, and I do not think that that has a chilling effect.

    In any event, what you suggest in these paragraphs is quite unlike you. You are saying that authors might have the ability to use DRM, but that if they do not, and instead stick to a system more amenable to the public, they will get some benefits DRM cannot provide (because it’s so flawed) and that their financial best interest is to eschew DRM.

    I more or less agree, but it raises a question. If that’s the scenario, why the hell should DRM be manditory? After all, it is always bad, whether an author is big or small, whether they publish a lot or a little. And how can we put forth the no-DRM road as a viable alternative unless DRM is uncommon and deliberately attacked at every turn?

    As I’ve pointed out, I believe that copyright is a utilitarian system, and that each actor in the system is self-interested. If we are to sucessfully keep authors from using DRM, we must make it in their self-interest to not use DRM, just as it is in our self-interest as members of the public, to get rid of DRM. This means putting all the rewards on the non-DRM side, and working to ensure that there can be no rewards on the DRM side.

    The idea of peer-to-peer DRM is only tolerable to me if it is voluntary and if it is tailored toward protecting free speech, and is useless for censoring speech that happens to use creative works other people created. It should be an anti-censorship tool that has no possible application in the copyright sphere.

    This might mean that your artist friend can’t use it to make a living, but it would mean that he could at least disseminate his art to people that wanted it even if he couldn’t make money from it.

    Of course, I have no confidence in the security of anything you’re involved in, and little confidence that communications in such a system would actually work, given that governments have enough power and resources to attack weak links that such a system would not address.

    Jim–
    I want language in the law that says explicitly YES you can do this!

    Yes, there is certainly a role for express exceptions to copyright. But don’t let that blind you to the need for vague, flexible exceptions such as fair use, which can adapt to unforeseen circumstances. Both kinds of exceptions are important, as is narrowly tailoring the exclusive rights themselves.

  69. Jim Powers says:
    February 26, 2006 at 12:17 pm

    Josh,

    Yes, there is certainly a role for express exceptions to copyright. But don’t let that blind you to the need for vague, flexible exceptions such as fair use, which can adapt to unforeseen circumstances. Both kinds of exceptions are important, as is narrowly tailoring the exclusive rights themselves.

    Understood.

  70. Jim Powers says:
    February 26, 2006 at 12:46 pm

    Josh,

    I’m about half-way done with your post, perhaps you’ll answer it later on, but I have a question:

    DRM implies no access to copyright
    copyright implies no use of DRM

    How do you think we should distinguish these two cases? I guess that first requires some sort of broad-based definition of what DRM is.

    The point that is troubling me is: every electronic file can be considered enciphered, you need some sort of program or method for deciphering the contents of file. What is the threshold here the cypher can be considered DRM?

    Take the following example:

    1. I’m part of a band that has international members. I live in America.
    2. I fly to, say Germany to record a gig
    3. The file gets encoded in format X in Germany. Format X is widely available throughout the world, but for some reason is not available in the states.
    4. I put the file encoded in format X on my web site back in the states. Now, people all over the world can play my song, but folks in the states cannot.

    Could this trigger the DRM flag and I lose copyright options in the states.

    I know this is a really, really, bad example, but I simply wanted to see where the borders exist in your mind.

  71. Josh Stratton says:
    February 26, 2006 at 1:11 pm

    Jim–
    Good question. I think that imputed intent is probably how it would have to be done, probably with some kind of ALJ in the Copyright Office that looks at this sort of thing. If a work is encoded when it’s in a machine-readable format, that by itself is not objectionable. Everything has to be, basically. Text is often encoded as ASCII or Unicode, but there are all kinds of methods, and there’s nothing wrong with people inventing their own. I don’t want to discourage free choice of encoding method or development of new methods. However, if encodings are applied that have the effect of DRM — impairing access et al through technical means — and it’s been done with the intent of impairing these acts, then I think we’d have DRM. Over time, a blacklist of DRM formats could be established so that it would be well-known that using CSS, for example, is going to result in no copyright. As always, you’d be free to use it and to publish a DRMed work, it would just be a public domain work.

    It is certainly a thorny question, however, and I welcome input on how to answer it. Note of course that it is also a question faced by DRM advocates. § 1201 tries to define technical protection measures, because it’s not illegal to circumvent mere formats, only DRM.

    Also n.b. that we don’t want this to be abusable by third parties, so it would require that the DRM was applied by the copyright holder or a party under his authorization. If a pirate happens to add DRM to an un-DRMed work, it would be unfair to revoke the copyright for that work. Authors would need to police their licensees, but this can be adequately done with contracts (automatically revoking the license if the licensee uses DRM on the work), and quality control checks, which is all perfectly ordinary in the trademark world and not a significant burden. There might even be a business opportunity for authors to just pay a specialized organization (c.f. ASCAP and company) to take care of it for them if the authors don’t want to do it themselves.

  72. Jim Powers says:
    February 26, 2006 at 1:11 pm

    Josh,

    following up on:

    Yes, there is certainly a role for express exceptions to copyright. But don’t let that blind you to the need for vague, flexible exceptions such as fair use, which can adapt to unforeseen circumstances. Both kinds of exceptions are important, as is narrowly tailoring the exclusive rights themselves.

    Shouldn’t the language regarding exceptions have the same degree of “flexibility” as the “flexibility” of traditional copyright law?

    Take for example your comments about the VCR and the fact that it first came about, then was challenged and was allowed. (As opposed to laws that are in the works to disallow this option from the get-go).

    I guess what I am saying is that the language should be “loose enough” to inspire someone to produce products that could possibly run into trouble later on. Ok, one more time: I would like to see people try to produce products that seem permissible under copyright exemption language rather than simply decide that the narrow definitions simply make it so that these products never happen.

    With apologies to Einstein: I would like to have the language as broad as possible, but no broader.

  73. Jim Powers says:
    February 26, 2006 at 1:35 pm

    It is certainly a thorny question, however, and I welcome input on how to answer it. Note of course that it is also a question faced by DRM advocates. § 1201 tries to define technical protection measures, because it’s not illegal to circumvent mere formats, only DRM.

    Yes, quite thorny. In the end I don’t think that it is going to be possible to actually define this in legal terms with any degree of specificity. Any attempt to do so will encourage folks to see if they can find a way to “straddle-the-fence” and seek a solution that meets some narrow legally defined definition and get away with both DRM and copyright protection. People are rather clever and if they CAN get their hands on the whole pie they will TRY.

  74. poptones says:
    February 26, 2006 at 2:11 pm

    Man, you two are such fucking control freaks it is obscene. You don’t want freedom at all – you want to be fucking dictators.

    Shill… ha. I see two of’em right now.

    Well, I can see there is no room hre even for reasonable compromise. So much for the fucking “debate.”

  75. Laurent GUERBY says:
    February 26, 2006 at 2:25 pm

    Nice to see MPAA, RIAA & other IP lobbyists noticing this blog :).

    Some citation from communist and totalitarian economist Friedrich von Hayek in the The Fatal Conceit: The Errors of Socialism, 1988 (p. 35):

    “Just to illustrate how great out ignorance of the optimum forms of elimitation of various rights remains – despite our confidence in the indispensability of the general institution of several property – a few remarks about one particuilar form of property may be made. […]

    “The difference between these and other kinds of property rights is this: while ownership of material goods guides the user of scarce means to their most important uses, in the case of immaterial goods such as literary productions and technological inventions the ability to produce them is also limited, yet once they have come into existence, they can be indefinitely multiplied and can be made scarce only by law in order to create an inducement to produce such ideas. Yet it is not obvious that such forced scarcity is the most effective way to stimulate the human creative process. I doubt whether there exists a single great work of literature which we would not possess had the author been unable to obtain an exclusive copyright for it; it seems to me that the case for copyright must rest almost entirely on the circumstance that such exceedingly useful works as encyclopaedias, dictionaries, textbooks and other works of reference could not be produced if, once they existed, they could freely be reproduced.

    “Similarly, recurrent re-examinations of the problem have not demonstrated that the obtainability of patents of invention actually enhances the flow of new technical knowledge rather than leading to wasteful concentration of research on problems whose solution in the near future can be foreseen and where, in consequence of the law, anyone who hits upon a solution a moment before the next gains the right to its exclusive use for a prolonged period.”

  76. Jim Powers says:
    February 26, 2006 at 2:45 pm

    poptones,

    I admit it, Josh’s ideas do intrigue me, and I had some questions. I’m still mulling over everything.

    As the thread has progressed, aside from clashes over technicalities, your agenda and ideas have worked their way out: I do think that I understand your thinking more now then when this thread started, but I don’t think that your goals are achievable, and not for technical reasons. It also seems to me that they are distinct from the copyright issue.

    Feel free to make “Dumb and Dumber” analogies if you want, but that really wont do anybody any good.

  77. Jim Powers says:
    February 26, 2006 at 2:52 pm

    Laurent GUERB,

    Wow, great post! I’m being completely sincere. Hey look, I’d like to chuck copyrights and patents out the window, but if I tried I’d die an unfulfilled person. So I admit it, I have lowered my sights to simply see if I can do SOMETHING to lessen the burdens that copyrights and patents impose on individuals and society.

    Keep ’em coming!

  78. Jim Powers says:
    February 26, 2006 at 4:25 pm

    Josh,

    More questions:

    Is your approach constitutional?

    It seems to me that it would not be hard to raise 1st amendment questions pretty easily: Why would one kind of speech: non-DRM encumbered creative work be treated differently than another kind: DRM encumbered? What is the compelling state interest in this case?

    My understanding is that the Supreme Court has set the bar pretty high to differentiate among speech. Granted, not really in the copyright area, so there may be some wiggle room.

    I’d like to hear your thoughts on this.

  79. Jim Powers says:
    February 26, 2006 at 4:51 pm

    Josh,

    Another question:

    “Mere encryption” vs. DRM.

    Suppose I encrypt e-mail or a file and send to to a bunch of people. (assuming PKI I have the public key for each of the recipients). Clearly I’m using encryption to both protect the message as it passes over the wire but I’m also using encryption in this case as a form of DRM: I only want the recipients to read the contents. Do I lose the ability to also claim a copyright on the contents of the e-mail or file?

    Your thoughts?

  80. Jim Powers says:
    February 26, 2006 at 5:10 pm

    Josh,

    Sorry, but another one:

    Simultaneous publication using different approaches:

    I’m a syndicated columnist. One publication I write for uses copyright, another uses DRM, both publications are in the states. What happens?

    This may not be the best example, but I think you can see where I’m going here.

  81. Jim Powers says:
    February 26, 2006 at 5:37 pm

    Josh,

    Really can’t help myself but the questions keep coming:

    The “limits” of publishing:

    Say a movie was released using a non-DRM encumbered method X. This movie is nominated for an academy award and the MPAA ships out DRM encumbered screeners. A) does this constitute “publishing”? B) if so does the move in question immediately become public domain? C) If not what constitutes the “publishing” threshold where the DRM/copyright issue must be considered?

    How is this case different then say Disney giving away DRM encumbered copies of a movie to passengers on a particular Disney cruise, while the same movie is also released for purchase using non-DRM method X?

  82. Josh Stratton says:
    February 26, 2006 at 9:13 pm

    Jim–
    Well, that’s a lot of questions. Let’s see:

    Is your approach constitutional?

    I believe it is. Failing to grant a copyright is not censorship; authors remain free to publish their works in the public domain. I don’t recall that anyone has even tried to challenge copyright laws on the grounds that Congress may not pick and choose what works to reward with copyrights, and must instead grant copyrights to the full extent of its power to do so. For example, Congress until recently did not grant copyrights for architectural works as a class. It has since chosen to do so, but I don’t think that it had to do so. The Eldred case certainly seems to indicate that the courts will defer quite a lot to Congress in choosing the details of copyright policy. Also, the anti-DRM provision I suggest is content and viewpoint neutral. It is a regulation involving the format of a work, but not what the work says, or the agenda a work is meant to forward. The only difference between a copyrightable and non-copyrightable work we’re looking at is whether it is encumbered with extraneous DRM or not. And note that the DRM is not actually part of the work. It’s more like a frame on a painting, or a title of a book; attached but distinct.

    The state interests, by the way, are: ensuring that copyright is the dominant form of regulation in the creative works sphere, and is not supplanted by DRM, which is a kind of private law ; ensuring that works are practically available for lawful uses, regardless of the wishes of copyright holders (strengthening deposit and curtailing adhesive licensing as applied to the general public are also part of this) ; ensuring that works survive into the future, which often requires unauthorized reproduction and distribution (see e.g. pretty much every work from antiquity, as they usually did not survive in the form of authorized copies and manuscripts).

    I’m also using encryption in this case as a form of DRM: I only want the recipients to read the contents. Do I lose the ability to also claim a copyright on the contents of the e-mail or file?

    Say a movie was released using a non-DRM encumbered method X. This movie is nominated for an academy award and the MPAA ships out DRM encumbered screeners. A) does this constitute “publishing”? B) if so does the move in question immediately become public domain? C) If not what constitutes the “publishing” threshold where the DRM/copyright issue must be considered?

    I think these are both basically questions of what constitutes publication. There already is quite a bit of caselaw on this, since it was important prior to the 1976 Act, as the rule used to be that publication without having obtained a federal copyright resulted in the work entering the public domain. Sometimes people wouldn’t bother to file for a copyright (which I take as being a good indication that they didn’t care and that it would be wasteful to give them one) and sometimes it happened because they didn’t meet the formalities requirements. I would tweak this caselaw somewhat by expanding the definition of publication (which presently doesn’t include public performance), and tending to assume that works were published in iffy cases. But usually it tended to involve how many people it was sent to, whether or not you allowed them to do what they wanted, or if you conditioned your giving them copies on their not releasing it, etc. We could also look to see if publication was planned, and this was just a preview for some critics or store buyers, etc.

    I’m a syndicated columnist. One publication I write for uses copyright, another uses DRM, both publications are in the states. What happens?

    The work has been published by a licensee of the copyright holder, and has been encumbered with DRM. The work hits the public domain. It’s easiest to put the burden on copyright holders, since they know who their licensees are, and had the opportunity to design the license to avoid that (by e.g. including a clause that terminated the license if the licensee applied DRM to a work for publication, which transforms them into a mere pirate, should they proceed) and can audit licensees more efficiently than anyone else.

    Laurent–
    Well, I think that copyright et al can provide an incentive, but that it is important to implement these systems to provide the best public benefit. If they in fact do not provide an incentive, the best implementation is no implementation. I suspect, however, that the actual best implementation is a modest form of copyright, rather than none at all. Still, it is important to keep all options on the table and to remember that copyright is not a goal itself, but a means to a goal.

    poptones–
    Man, you two are such fucking control freaks it is obscene. You don’t want freedom at all – you want to be fucking dictators.

    For the nth time, let me remind you that I am absolutely in favor of authors having the freedom to release works in DRMed form.

    However, I am self-interested, and I prefer for authors to not use DRM. Thus, I will reward authors that do not use it, and will not reward authors that do use it. Authors are equally self-interested. If they feel that using DRM is more rewarding than not using it, or vice versa, then they’ll act accordingly.

    I am not ever going to force authors to do what I want. But I am not above bribing them to do what I want, by offering big rewards to abstain from DRM, and no rewards for using it.

    I don’t see why, if I am a self-interested actor, as everyone is, I should have to reward people that act contrary to my interests. You are insisting that I act in a self-harmful manner, to the benefit of others, and so I feel that you are the tyrant here, not me.

  83. poptones says:
    February 26, 2006 at 11:00 pm

    DRM is here, its capabilities will expand. This is not something you can prevent and all your “activism” isn’t going to strip hardware out of machines.

    Objecting to features being added to machines simply because you are afraid is, in this cases, insane. People believe wifi causes brain cancer, too. Should they avoind laptops? Gee… what if, instead of not buying the laptop, they just turn off the fucking wifi.

    You cannot just “tack on” the most critical tcp components because the most vulnerable part of the hardware is the backplane – no matter what else happens, if the data passes unencrypted to and from memory and the system is in the hands of an attacker, you might as well not use anything at all. Adding encryption capabilities into the cpu core itself is mandatory if any of this is to succeed and its presence should be welcome – at present I pay a pretty substantial performance penalty for employing encryption on my machine, it would be improved significantly if the encrypton and key management were built right into the virtual memory management of the cpu.

    “Can’t be done?” Some powertrain control systems in cars have, far about a decade now, employed microcontrollers that include encryption right in the cpu core itself. You can copy a PROM in a system but altering the tables won’t have the effect you expect because, not only the data but the addressing is “scrambled” – encrypted. If it were such a trivial matter to reverse engineer these systems, in a market as lucrative as the automotive performance market one would expect this system to have been “cracked” in all those years before the dmca made it illegal. Hmmmm… wonder why it wasn’t?

    However, I am self-interested, and I prefer for authors to not use DRM. Thus, I will reward authors that do not use it, and will not reward authors that do use it.

    I see. So I take it that you, like me, do not purchase mainstream hollywood movies? Do not have a videogame machine or purchase videogames for the pc? Do not have cable tv, do not have satellite tv, do not make use of itunes, do not own an ipod, do not purchase (or make use of) music released by american commercial publishers, do not make us of google video, bbc video, or pretty much any online multimedia content?

    For, In every one of these examples, you would be rewarding authors or their representatives who make use of encryption combined with rights management – ie DRM.

    Don’t bother answering… mere assertions are unprovable and, therefore, irrelevant. My aim was only to direct you toward a point, though I find it likely this will escape you as have most others made.

    I now leave you to return to your task of contemplating one another’s navels…

  84. Jim Powers says:
    February 27, 2006 at 6:36 am

    Josh,

    Thanks for your time and answers. Have you published more on this anywhere else?

    poptones,

    DRM is here, its capabilities will expand. This is not something you can prevent and all your “activism” isn’t going to strip hardware out of machines.

    DRM is here, and hardware that enables it to be even more abusive is certainly coming, no disagreements there. Where I disagree is about the “activism” part: I do think that is can result in prohibiting the effectiveness of DRM based on software or hardware.

    Objecting to features being added to machines simply because you are afraid is, in this cases, insane. People believe wifi causes brain cancer, too. Should they avoind laptops? Gee… what if, instead of not buying the laptop, they just turn off the fucking wifi.

    “In this case” is an arbitrary measure. At some point people can start to say “I don’t like this”, simply because we haven’t crossed a threshold that you are sensitive to doesn’t make those people insane. People were upset about CPU IDs being stamped in a few years ago. Eventually people got comfortable with the idea that the IDs were defaulted off and you had to turn them on. Practically nobody turns them on. I don’t think this theoretical fear was insane, what is being planned for our machines in the future has can have stupendously catastrophic results should it go awry, and that’s not even considering the DRM applications, which is why is was conceived in the first place.

    Wi-Fi and brain cancer : smoking and second-hand smoke.

    True, if you did have fears of Wi-Fi causing brain cancer you would need to do a lot more than simply disable it on your machine.

    You cannot just “tack on” the most critical tcp components because the most vulnerable part of the hardware is the backplane – no matter what else happens, if the data passes unencrypted to and from memory and the system is in the hands of an attacker, you might as well not use anything at all. Adding encryption capabilities into the cpu core itself is mandatory if any of this is to succeed and its presence should be welcome – at present I pay a pretty substantial performance penalty for employing encryption on my machine, it would be improved significantly if the encrypton and key management were built right into the virtual memory management of the cpu.

    Cannot “tack on”: general agreement. But the real issue, for instance with the new crop of TCPA-compliant NICs that are coming out: it will be years, many, many years before there are enough of them out there to do anything reasonable with them on the “Internet” since these cards have to be on both ends of the connection in order to work. and have to be enabled. People are talking about a 5 year horizon for businesses to be able to begin to take advantage of these puppies. By then there will be versions 2.0, and maybe 3.0 of TCPA. It’s like switching to IPv6 all over again, only much worse. Also, like Microsoft being their own worst competitor in the Office market, each generation of TCPA will, of course be backward compatible, but will offer new features that make publisher-side will imposition (aka DRM) all that more “appealing” (if such a word can be used). Publishers will just waste time and effort dealing with the technology of control and all its variations and associated costs instead of just publishing their content, which, in the end is what people want to pay for.

    Now, for those applications truly in need of security down to the wire TCPA will be a boon, but I disagree about “the most vulnerable part of the hardware is the backplane”, the most vulnerable part of the entire system is the user. My guess is that this is point we can agree on. I also disagree that this level of security is what everyone wants. In reality, I’m thinking that the average computer user will have no idea what the hell TCPA is. Many of them will pick up on the fact that the general press about it has been negative and will simply not turn it on. They will simply continue to pay rent to McAfee and Symantec thinking that they are getting the same thing. True, some of this can be overcome by some sort of education campaign, but as a publisher of content do you really want to be turning away dollars from people simply because they choose not to activate TCPA?

    “Can’t be done?” Some powertrain control systems in cars have, far about a decade now, employed microcontrollers that include encryption right in the cpu core itself. You can copy a PROM in a system but altering the tables won’t have the effect you expect because, not only the data but the addressing is “scrambled” – encrypted. If it were such a trivial matter to reverse engineer these systems, in a market as lucrative as the automotive performance market one would expect this system to have been “cracked” in all those years before the dmca made it illegal. Hmmmm… wonder why it wasn’t?

    Agreed: can be done. The military has been doing this for decades.

    Hacking car control systems: Has been done. Not to all cars and not to all control systems. But pre-DMCA days third-party performance control profiles were available. I have a friend who has a car from 1995 that does have an encrypted control system PROM and he putzes with it continually thanks to a cracker he found. But the car hobbyist market is a mere ghost of its former glory, mainly do to the complexity of car engines and their control systems.

    Also DMCA related: there is a substantial backlash by independent mechanics about the encryption systems used by manufacturers to encrypt diagnostics information. Again, it has been a while, but my last recollection is that manufactures were compelled by court order to make this diagnostics information generally available.

    I see. So I take it that you, like me, do not purchase mainstream hollywood movies? Do not have a videogame machine or purchase videogames for the pc? Do not have cable tv, do not have satellite tv, do not make use of itunes, do not own an ipod, do not purchase (or make use of) music released by american commercial publishers, do not make us of google video, bbc video, or pretty much any online multimedia content

    Why does it take membership in your club to be allowed to make comments on this issue?

    For, In every one of these examples, you would be rewarding authors or their representatives who make use of encryption combined with rights management – ie DRM.

    Today, arguably yes. Tomorrow, who knows? de-fanging DRM by making it legal to circumvent, as I would like to do, makes publishing using DRM a neutral issue. Based on what Josh has been saying it seems like the “balance” to your selection of DRM as a vehicle for publication would be that you are effectively releasing into the public domain, once a crack is to be had then your content IS literally in the public domain. It is an intriguing idea.

  85. poptones says:
    February 27, 2006 at 11:34 am

    de-fanging DRM by making it legal to circumvent, as I would like to do, makes publishing using DRM a neutral issue.

    Irrelevant. You might as well be debating the implications of personalized nuclear bombs for everyone. It’s a stupid fucking idea fundamentally and it’s not going to happen (thankfully) anytime in the near future.

    But far be it from me to interfere with your navel gazing. Forget trying to come up with reasonable and productive commentary to add to the debate… y’all go back to shilling for the legal industry while the other 80 percent of the world starves and is silenced by your oppressive regiime… not all of us are ignoring them.

    Sleep well, McCitizen.

  86. Josh Stratton says:
    February 27, 2006 at 2:02 pm

    Poptones–
    Forget trying to come up with reasonable and productive commentary to add to the debate…

    Unfortunately, you are conflating reasonable and productive ideas with your ideas. We earnestly think that our ideas are reasonable and productive. They fundamentally clash with your ideas, but that alone doesn’t make them unreasonable etc. I’d appreciate it if you would stop acting as though it did.

    I cannot help but imagine this discussion if it had happened about 150 years ago, on a different subject. You would argue that slavery is here to stay, the big plantation slave-owners will never allow it to vanish, and we ought to find a way to make slavery help even poor people (who generally didn’t have slaves, as they couldn’t afford them), become more efficient, etc. We on the other hand are arguing that slavery is inherently bad and should end immediately if not sooner. You say that that is not reasonable, and is not productive in making slavery beneficial for as many people as possible, but that is because you are not interested in hearing ideas that materially differ from your own.

    Or we could be talking 50 years ago. You could be saying that racial segregation is here to stay, powerful white bigots will never allow it to vanish, and we ought to find a way to make it more reasonable (by making segregated facilities more equal, for example), etc. We on the other hand are arguing that government mandated or supported segregation is bad and should end immediately if not sooner. You say that this is not reasonable, and is not productive in making segregation as even-handed as possible, but that is because you are not interested in hearing ieas that materially differ from your own.

    Ultimately, it took a war to settle the first issue, and massive unrest to settle the second. It’s possible that it will take something similar in order to reign in copyrights, patents, etc. (n.b. that few are seriously talking about abolition here; I’m not, certainly). I would hope, however, that you will allow yourself to seriously consider more ideas that aren’t already in line with your own, and that we can avoid the tumult of the past. Certainly I don’t mind having pro-DRM people such as yourself weigh in on the debate. I recognize that your ideas are valid, I just totally disagree with you and oppose you. But I’m happy to listen and to be open-minded. People have convinced me to change my mind before. I’m not sensing that about you, though.

  87. poptones says:
    February 27, 2006 at 2:43 pm

    Really? Tell ya what, Josh… go hit up arstechnica. You will find there thousands of my tirades about this matter, many in which I engaged verifiably qualified professionals regarding matters of IP law. You will see that I was, at one time, in fact even more of an “anarchist” than you.

    I looked at the bigger picture. I saw where this technology could go, and I embraced choice and freedom as the primary motivation of everything I espouse. No one is forcing upon you Mariah and Avril… you are embracing them. There will be no “fixing” these issues until “people like you” get over this addiction to pop culture trash and realize you are the culture, the culture is not you.

    Freedom is impossible without responsibility. If you truly want to be free, you will stop neglecting yours.

  88. ACS says:
    February 27, 2006 at 3:27 pm

    I cannot help but imagine this discussion if it had happened about 150 years ago, on a different subject. You would argue that slavery is here to stay, the big plantation slave-owners will never allow it to vanish, and we ought to find a way to make slavery help even poor people (who generally didn’t have slaves, as they couldn’t afford them), become more efficient, etc. We on the other hand are arguing that slavery is inherently bad and should end immediately if not sooner. You say that that is not reasonable, and is not productive in making slavery beneficial for as many people as possible, but that is because you are not interested in hearing ideas that materially differ from your own

    Josh, although I do respect many of your opinions I must say that you are way off the mark here. There is no analogy between copyright in the twenty first century and slavery. Salvery is inherently wrong – copyright is a legal protection of original works for the commercial benefit of authors.

    Copyright does not discriminate except between the creators and the consumers. Unlike slave owners, there is a merit based reason for discrimination – it is a persons creation.

    Please do not confuse the powerful and emotive issues of slavery and racial segregation with the relatively benign monopoly of copyright.

    Finally, the core of this problem is rather simple- some of us want our works to be protected – some dont mind if they are shared. Of course, those that wish to share under the current system can use CC or licence thier works. On the other hand, should the system change as Jim Powers suggests – some will lose out forever and others will just avoid making a licence.

    Surely logic dictates that there is no need to alter the current system – if we can licence.

    I know your pains over DRM and the right to alter vs Fair Use. I agree that this should be changed to allow for Fair Use but I do not agree that all copyright should be altered.

  89. Josh Stratton says:
    February 27, 2006 at 5:41 pm

    ACS–
    I’m not trying to make an analogy, and I apologize if I caused confusion. I was simply trying to point out by example that there are matters where it is perfectly reasonable to not compromise, and that in such a matter, the non-compromisable options must not be marginalized. Copyright is certainly not as big an issue as slavery. Although given that it is intimately tied up with promoting and protecting knowlege and culture, it’s not a small issue either.

    However, I think that any attempt to make a “good DRM” system is just as bad as the “bad DRM” systems that are produced when the various pro-DRM industries are left to their own devices. I am opposed to DRM in the copyright sphere. Given that my goal is no DRM, I cannot reconcile that goal with Poptone’s suggestion that I support some form of DRM if it is not quite as bad as others. I see no distinction between any sort of DRM; they are all equally bad. And since I have my position, and I want it to succeed, I cannot permit it to be marginalized.

    copyright is a legal protection of original works for the commercial benefit of authors.

    Well, I would disagree. Copyright is ultimately meant to benefit the public. It just accomplishes this by providing some benefit to authors. The farmer who uses a carrot to entice his donkey to pull the wagon to market does so to benefit himself, not the donkey. Benefits to authors or donkeys are only means to an end.

    Whenever I consider copyright policy, I always try to think about how the public interest will be maximally satisfied. I never think about whether authors will like it, save for how that fits into the question of satisfying the public interest. And maximally satisfying authors’ interests is not likely to be sensible. I think that it significantly influences my thinking for the better, though I admit I need to work on my imagining of radically different copyright systems; right now I still tend to think in terms of the traditional sorts of exclusive rights, etc.

    Finally, the core of this problem is rather simple- some of us want our works to be protected – some dont mind if they are shared. Of course, those that wish to share under the current system can use CC or licence thier works. … Surely logic dictates that there is no need to alter the current system – if we can licence.

    Essentially you’re describing automatic copyrights that people must opt out of by taking affirmative steps. I don’t care for this because I think that the people who don’t care whether or not they have a copyright are the same people that don’t care enough to expend effort licensing their works. For example, do you care if people can use your comments here, whether under some sort of license or in the public domain? I’m willing to bet that you don’t especially care. It’s not as though you have anything to lose, really. I bet you’re not reprinting them and selling copies. But you apparently have not done so, probably because it would require effort. The effort is minimal, but you would have to remember to do it, you would have to type a little more, if you were unfamiliar with copyright licensing you would have to write a license or obtain one, and so on. So you tend not to do it, and it doesn’t get done, even though you would be ok with it.

    As an example of this, all my posts are in the public domain as of their creation, both here and elsewhere. But since I can state this automatically in a sig on other boards, and I can’t automatically do it here, I tend to forget to here. Even on other boards, I have to remember to put in the sig.

    I think that the solution is to invert copyright so that it is not automatic, but must be opted into through affirmative steps. I think that people who want copyrights are probably willing to take some effort to get them since that effort will be repaid (they hope) with profits. It’s quite different from people who don’t care about copyrights on a particular work and who likewise don’t care enough to opt out in some way.

    Of course, this really has little to do with DRM, which is not bad for the reason that works will tend to be protected when that protection isn’t necessary and perhaps isn’t even wanted by the person who receives it. Rather, DRM is bad because it attempts to supplant copyright, a system intended to benefit the public, with a private system that is intended to benefit authors et al. I can tolerate the existence of DRM, since I feel that I must if I am to support the idea of free speech. But I certainly do not have to help those that use DRM in any fashion at all. Copyright in particular is the form of help I think we should decline to extend.

    I know your pains over DRM and the right to alter vs Fair Use. I agree that this should be changed to allow for Fair Use

    Well, I fear you’re oversimplifying. I mean, not only is fair use entirely ambigious, and thus will never be something a mere machine can allow for, but it is hardly at the center of my arguments. DRM is bad because it conflicts with fair use, but it’s also bad because it tries to supplant copyright, because it conflicts with term expiration, because it conflicts with numerous exceptions, because it tends to protect more than the exclusive rights, etc. There are so many conflicts that I feel copyright and DRM are utterly incompatable. Supporting the former, I end up having to oppose the latter.

    but I do not agree that all copyright should be altered.

    Well, a total overhaul of copyright would be wanted for other reasons besides DRM. But I think it’s appropriate to start over from first principles, with the sole goal of maximizing the public benefit. This would tend to mean throwing the current law in the trash where it belongs and writing a new one from scratch. I imagine there would be a resemblance (as can be seen if you look at various copyright laws through the ages), though as I said, I sometimes worry that I’m not thinking creatively enough about new ideas for how to go about implementing copyright.

    poptones–
    I embraced choice and freedom as the primary motivation of everything I espouse

    Uh huh. Here’s what you’ve espoused:

    I embrace total control in DRM

    …

    DRM CAN prevent you from easily making an exact copy, however, or one that can be remixed or repurposed.

    …

    I’m not going to send you my video content unless you use software that recognizes the DRM metadata fields encoded in my programming. You might take screenshots with a video camera, but unless you have an approved HDMI signal path you won’t get any high def video, and your player must recognize the fair use credentials built into my file – that means you get to “rip” up to two minutes of fat content every month, certain pieces (like the climax of the story, or perhaps the flashes of nudity or, if it’s porn, the “money shots”) will not be available at all for capture, and unless your client knows how to identify and respect these fields, my content ain’t gonne play on your machine at all. I’ll happily send it to you, and you may feel free to rebroadcast the file as I send it to you all you like – those others who obtain the file and will run approved code will enjoy it, I’m sure.

    …

    What we need … is a reasonably robust system of securing some amount of trust within the commodity computing platform. That this ability might mean some would abuse it by locking away encrypted works in a manner that is inconsistent with the ideals of the classical american copyright system is irrelevant: some people will always find a way to abuse any amount of control given them

    …

    Adding encryption capabilities into the cpu core itself is mandatory if any of this is to succeed

    The theme we can see in your posts is that you want people to not have the freedom to do anything with works they come across unless it is carefully doled out and sold to them if the seller feels like it; permission, not freedom.

    You do not want people to have a choice in the matter, because the law will force them to not circumvent DRM, and will force them to have equipment that respects DRM since no other equipment will be permitted; you have to force it on them, really, because no one wants to be on the receiving end of DRM.

    And worse still, you know or should know that DRM will harm artists outside of established pop culture because of an interesting confluence of facts. Fact: most people like pop culture; it’s not pretty, but there it is. Fact: pop culture actors (e.g. RIAA, MPAA, etc.) are rent seekers who hate unestablished artists that achieve success without them, and will try to keep them down or make them play within the system. Fact: if DRM allows an author to impose conditions on their audience, one of those conditions will inevitably be that the audience cannot enjoy pop culture unless he only enjoys pop culture. The DRM will prevent new artists who don’t work with the established actors from releasing their works, either without DRM (since non-DRMed works are presumed to be pirated copies of works that have had the DRM stripped from them) or with DRM (since hefty licensing fees and unusual equipment will be required, and this is outside the reach of a mere garage band or spare-time programer).

    We’re already seeing this. Microsoft is using DRM in Vista to prevent developers from writing some forms of software without some manner of imprimatur from Microsoft. HDTV signals are being encrypted such that displays will not operate at their full quality level unless a signal ultimately originates from a broadcaster. Taking this trend to its inescapable conclusion, if you want to use Linux, you’ll need to fab your own chips, and that won’t be allowed because who knows what those chips might be capable of.

    Eventually the “choice and freedom” you espouse will be the choice of authors and audiences to sell out and operate within the confines dictated by the usual suspects, or the choice to break the law by not using approved, limited equipment, which is necessary if you want the freedom to operate legitimately but outside of those aforementioned confines, and which is also necessary if you want to operate illegitimately, and enjoy the best of the pop culture world and the independent world.

    How you can possibly believe your own bullshit is simply astounding to me. But the future — if we tolerate DRM — is basically as I’ve outlined it. As I see it, the best way to avoid this is to attack DRM in such a way that no one supports it any more, at least for applications connected to copyright.

    You keep putting forth this vision of a world in which any author can use DRM, and this can allow independent creators the chance to flourish through some sort of handwaving. I think that is a pipe dream. It almost sounds nice (in the way that Stepford almost sounds like a nice place to live) but realistically it is not going to happen. It is not going to happen if we become quislings and help design the DRM systems that will be our own prison and shackles. It is not going to happen if we don’t help but allow it to happen. It is also not going to happen if we fight DRM.

    But! If we fight DRM, then at least these independent creators will still have the freedom to use any technologies they like (usually consumer-grade gear, as it’s cheaper — it’s also the kind most likely to have DRM if we allow it to exist), and audiences will not be forced to choose between the seductive main street of pop culture and the dingy but rewarding back alley of independents. And hey, why should they? You like to talk about how superior you are, since you use Linux, and don’t go to the movies, and whatnot. I don’t think that people should have to become hermits from society. I think that both worlds have something to offer, and people should get to enjoy the best of each. Ultimately, we know this system works, because we have lived in it for centuries. Your ideas, besides having serious and obvious faults as I’ve detailed, is also untried. At the very least, even if we progressed toward it, we should do so cautiously.

    In sum, you talk about freedom, but I think you couldn’t be more opposed to it in reality. Whether it’s out of malice or ignorance, I don’t know, but it’s bad either way.

  90. poptones says:
    February 27, 2006 at 6:07 pm

    “Allow DRM to exist?” Dude, DRM is nothing but encryption combined with quantifiably secure computing platforms. DRM already surrounds us and it is inciting far more creativity than the world without – ringtones (one of which has become a bonafied “hit”) being the least of these examples.

    No one is forcing you to use encryption, but to refuse others this right is to place yourself in league with repressive regimes across the world who deny their proletariat this right – Cuba and China again being prime examples. Why do you hink China prohibits the creation or possession of encryption technologies?

    Adding these abilities more directly to the coe functionality of general purpose computing platforms is a technologically neutral means of adding quantifiable value. Once this technology is pervasive it will become increasingly harder for those regimes to keep the peasant and proletariate classes separated from it.

    Corporations have the money to lobby for laws, but corporations also are readily held accountable for their actions when they violate our trust. We have the ability to enforce restrictions upon these corporations and the economic infrastructure to enforce them – peasants do not. To demand this technology be prohibited by all is to put yourself firmly in the hip pockets of corporations and repressive regimes the world over.

    it is obvious freedom is not your goal, but oppression. You no more value the creative potential of that now silent 80 percent than the greedy corporations. Only to them this control represents Billions of dollars – to you it represents nothing but access to free pop culture trash.

    You should be ashamed of yourself, McCitizen.

  91. poptones says:
    February 27, 2006 at 6:31 pm

    audiences will not be forced to choose between the seductive main street of pop culture and the dingy but rewarding back alley of independents.

    You mean that dingy dark alley that is Magnatune? All those grimy indies like Thomas Dolby and Siouxsie Sioux?

    Dude, that attitude is fucking despicable. You are a traitor to this culture you claim is your own and with every post you are furthering your own irrelevance to any claims about fostering intellectual and creative freedom

    You like to talk about how superior you are, since you use Linux, and don’t go to the movies, and whatnot. I don’t think that people should have to become hermits from society./

    I’m not a hermit from society. I choose to embrace my responsibility to those parts of our culture which we claim are positive. I own my beliefs and values… do you? Thus far you have shown zero evidence of it.

  92. ACS says:
    February 27, 2006 at 7:02 pm

    Whenever I consider copyright policy, I always try to think about how the public interest will be maximally satisfied. I never think about whether authors will like it, save for how that fits into the question of satisfying the public interest. And maximally satisfying authors’ interests is not likely to be sensible.

    Thats all fine but you don’t point out the actual public interest in copyright. As I understand it the policy behind a copyright regime is to protect authors works from commercial exploitation without thier permission in order to entice creation of those works. More authors then become willing to publicise thier works on a larger scale and therefore the public benefits.

    To divorce the distinct grant of rights from the public interest it seeks to serve is a nonsense.

    Josh, you also said to poptones:-
    You do not want people to have a choice in the matter, because the law will force them to not circumvent DRM, and will force them to have equipment that respects DRM since no other equipment will be permitted; you have to force it on them, really, because no one wants to be on the receiving end of DRM.

    DRM is just coding. I dont see how it is so hard for any programmer to create a program that encodes sound files into DRM formats. You keep saying things like:-

    And worse still, you know or should know that DRM will harm artists outside of established pop culture because of an interesting confluence of facts. Fact: most people like pop culture; it’s not pretty, but there it is. Fact: pop culture actors (e.g. RIAA, MPAA, etc.) are rent seekers who hate unestablished artists that achieve success without them, and will try to keep them down or make them play within the system. Fact: if DRM allows an author to impose conditions on their audience, one of those conditions will inevitably be that the audience cannot enjoy pop culture unless he only enjoys pop culture

    well that seems to me to be the most paranoid post here. A DRM condition cannot restrict the other files that the user accesses. That is just fear mongering.

    Finally

    The DRM will prevent new artists who don’t work with the established actors from releasing their works, either without DRM (since non-DRMed works are presumed to be pirated copies of works that have had the DRM stripped from them) or with DRM (since hefty licensing fees and unusual equipment will be required, and this is outside the reach of a mere garage band or spare-time programer).

    What is this “special equipment” that is required? Its just software encryption. Basic packages will probably be shareware in a couple of months. Why doesnt someone point one out to Josh and allay his fears.

  93. Jim Powers says:
    February 27, 2006 at 8:40 pm

    poptones,

    Really, come on now. Freedom is not absolute, in order to “get along” we have to work with some compromises on freedoms we could enjoy if we were the only person on Earth.

    I understand that you have put a lot of stock in the idea in the idea of a publisher of a work retaining, essentially, absolute control over that work; even after what would traditionally be viewed as the end of this control: the negotiated (usually by purchase, but of course there could be other means as well) transaction where a copy of your copyrighted work goes off with somewhere else. You feel (and seem to think it is very important) perfectly comfortable with retaining complete control over every “use” of that copy. I feel that if you did, in fact, retain the kinds of control you are talking about you would, in fact, be treading on my freedoms. I can in no way rationalize a justification for this. I see what you seek a clear debasement of the rights that people would and should expected to reasonably retain under these circumstances.

    You have a right to publish and otherwise make your works available.

    You do not have the right to expect that use of your work will only be used in the arbitrary limited ways you dictate without also realizing that you are, in fact, without a doubt, unequivocally, DENYING the rights of others to CHOOSE otherwise!

    So far in this thread the options that I have seen propose involve:

    1) Dis-banning the use of publisher will-imposition by either repealing or gutting the DMCA and making DRM a mere inconvenience, like copy protection of old.

    2) Forcing you to place a bet on the protection method you think will suit your needs the best: DRM or copyright.

    Also, remember that 2 involves removing anti-circumvention rules as well.

    You have this delusion that there is a straight-line between absolute power of that which is “published” and saving the world! Don’t you at all see that this power you seek to create can be subverted! It can be used to do harm as well as good. As much as it can be use to expand the horizons and markets of artists who’s work, as you have used as examples, is confined because of the tastes and biases of the world, it can shut down borders as well! So imaging a world where people like me are locked up in jail for daring to watch a DVD on the hardware of their choice, or decide that the “right to read” sapping eBooks soon to be unleashed are not to my liking. Suppose that the US forces it’s trading partners to institute DMCA-like laws. Our McMansions get bigger but there is NO GUARANTEE THAT ANYONE ANYWHERE ELSE BENEFITS! Suppose that Saudi Arabia implements laws that are like the DMCA but WORSE. Stuff coming in to the country from the US is locked down harder than Fort Knox, but for people in Saudi Arabia laws are passed that make it illegal to send e-mail out! Or maybe they can but it all has to go through a government e-mail gateway that has the ability to look at everything. TCPA won’t help them because the Saudi’s won’t use potentially subversive technology from the out side. The Saudi’s version of the DMCA requires back-doors and universal keys. People don’t even know this is happening. People are being hauled off to jail for no apparent reason. The “trust” thing you have been pushing doesn’t exist in places like China. They will not allow technology they can’t hack to be in the hands of their citizens. China will make any system that uses “credentials” falsifiable so they can go after dissidents on trumped-up charges. There are no technical ways that you, I or anyone else can implement to meaningfully do anything about these problems. While we’re out executing your plan I’m in jail and nothing happens.

    The DMCA and DRM is not the antidote to the world’s ills. From my vantage point I see something like encryption being perverted into DRM. I see it being used in conjunction with laws to not only make it illegal to “remix”, but it will quash speech.

    How can you sit there, in front of this amazing thing we call a computer, using software developed by some of the most intelligent and dedicated people on the planet then just GIVEN AWAY! Not just for free, but for FREE, as in LIBERTY! As in, as far as legal entities recognize it as such, that software you are using can NEVER be taken away if you honor FREEDOM! How can you sit there and not realize that the way to fight the oppression of thought and deed is by FREEDOM! Don’t give China an excuse to oppress their people more because they can point a finger at the US and say: Ha! we don’t have to respect freedom. Look you let fat-cat Hollywood lobbyists walk right up the steps of the Capitol and buy off people’s rights, then dictate the terms of how this issue will be argued in courts.

    You cannot be possibly blind to this. I have read your previous posts, you are smart, and clearly passionate. It truly hurts me to see you throw that intellect in a direction where you could wind up doing very great harm because of a delusional vision of saving the world by giving people an irrevocable voice, then find out that your vision has been twisted into a nightmare and everyone loses.

    We need you. We need your talents, we need your intellect, we need your passion, we need your quirky foul-mouthed personality to fight for freedom at all levels. Not absolute freedom, but a congenial freedom, a freedom we can share. We need people like you fighting the DMCA, we need you to fight DRM. We need you to fight for the right to do what we feel is worthwhile with the media we have. We need you to make it possible and legal to convert that very important DVD from region 1 to region 2 to show to your relatives when you get to Saudi Arabia.

    I steadfastly refuse to believe, after reading some of your previous posts cannot see, after all is said and done, that laws like the DMCA will have a profoundly negative effect on our society. You can lash out at me in any way you want to either make you feel good or to enable you to save “face”. But I implore you to reconsider your position in the matters we have discussed here.

  94. Josh Stratton says:
    February 27, 2006 at 9:18 pm

    poptones–
    DRM already surrounds us and it is inciting far more creativity than the world without – ringtones (one of which has become a bonafied “hit”) being the least of these examples.

    Are you saying that DRM is a proximate cause of the creation of new ringtones? Do you really think that people would not create ringtones without DRM? I think they would. Further, I also think that the possible benefit to society of DRM is far outweighed by its cost. It is better to have fewer but unencumbered ringtones, sticking with your example, than it is to have more but less useful ringtones.

    DRM is nothing but encryption combined with quantifiably secure computing platforms

    DRM is not congruent with encryption. This is demonstrable: SCMS is a form of DRM, and it’s just a pair of bits that is stored alongside the audio data, which remains plaintext at all times. If you’re going to promote DRM, at least have the courtesy to know what it is.

    No one is forcing you to use [DRM]

    This is untrue at present, but in any event, I was discussing what will happen in the future: DRM will have to be used in order to have full access to platforms such as common home video players. Furthermore, electronics manufacturers, who surely have an equal claim to freedom as any author or publisher, are already prohibited from making any number of devices, such as consumer-grade digital audio recording devices that do not incorporate SCMS (per 17 USC 1002) or VCRs that do not incorporate Macrovision (per 17 USC 1201).

    but to refuse others this right is to place yourself in league with repressive regimes across the world who deny their proletariat this right

    I am greatly disappointed in you, Poptones. For quite some time I have said again, and again, and again, and again, that I am not opposed to encryption, communications security, the ability of people to overthrow rotten governments, etc. If the people of repressive regimes want to use PGP or the like in order to protect themselves from being spied upon, then I support them fully.

    But to invoke that idea is the acme of a non sequitur.

    We are not talking about communications that must be kept private or anonymous in order to protect people from reprisal. We are talking about copyrights: rights that are granted in order to encourage authors to publish their works and exploit those works for economic benefit. the policies surrounding copyright DRM and the security tools of rebels and reformers are as different as night and day. Arguments in favor of one cannot be used to support the other unless we abandon all rationality. Once again, you are being very intellectually dishonest, and I will not tolerate it. You cannot win this argument anyway, but you certainly mayn’t cheat.

    Here, in plain English, for the one-hundredth time, is my position on these two utterly different uses of technology:

    First, I am against DRM in the copyright world, because copyright is meant not to be supplanted by private law, and is meant to promote the public interest even if at the expense of authors (e.g. by permitting some unauthorized reproduction, distribution, etc., by expiring, and so on).

    Second, I am simultaneously for very solid security and encryption tools in the hands of the public worldwide, because censorship is wrong, because communications and papers should be as private as their participants wish them to be, and because government should avoid to the greatest degree possible to submit to the will of their people whilst respecting civil liberties, and should not be hostile to their own people.

    These positions are basically orthogonal, but they are certainly not in conflict. Alice and Bob should be free to have secret discussions on any subject, and to have the tools to keep them secret. But since copyright is intended to promote publication of works, secret works are not going to get copyrights. Alice and Bob will have to reveal their collaboration to the world if they want a reward for it in the form of a copyright. If they reveal it and still use DRM, then that’s okay too, but no copyright, because it has not been published sufficiently (in that copyright law isn’t controlling, etc.).

    If you still don’t get it, which would be surprising, because I thought it was already settled earlier, then I will try to explain again, louder. But otherwise I will assume that you understand my position, and will not complain when I call you a liar the next time you dare to so much as suggest that I am an opponent of liberty.

    I am sick of your baseless attacks on my character, especially after I have patiently explained myself many times. This is especially so, given that your objection is totally unrelated to this entire discussion. Copyright is not connected to censorship, and no one here has suggested that it should be connected to it. No one but you, in fact, since DRM will not work unless you censor tools that can circumvent it (see e.g. DeCSS, DVD X Copy, etc.).

    I think we’re done with this, and I expect you to become significantly more civil in the future.

    To demand this technology be prohibited by all

    I’ve said no such thing. I said that works that use DRM should not get copyrights, and that the public should focus on attacking said DRM so as to get to the public domain works within. I think that this simple policy will greatly discourage publishers from using DRM — though they would remain free to do so — and would greatly discourage hardware manufacturers from even bothering to support it. In this way, DRM can be killed because it would be rendered so unpopular. It would never be illegal. There is a big difference.

    ACS–
    but you don’t point out the actual public interest in copyright

    I’ve pointed it out before, but here it is again. The public has equal interests in: having original works created, having derivative works created, having works published, having works have no copyright on them, or as little as possible (so as to be free to use them as they like), having works enter the public domain as swiftly as possible.

    Each of these is satisfied to a particular extent by any system of copyright, or none at all. In order to compare the worth of a system with another (or none), sum up the satisfactions of the various public interests under each. Whichever is greater, that is the superior of the two. It’s a bit subjective (though there are some interesting economic studies) but this is the idea.

    Enticing creation of original works is good (since it helps to fulfill one of those interests), but not good enough. We provide that enticement by surrendering some of the fulfillment of the other interests. If the gain on the one hand is greater than the loss on the other which produced it, then we’ve had a net win. If it’s less, then we’re having a net loss.

    An example: various studies have indicated that the vast majority of the economic value of a copyright is in the neighborhood of about 15 years. That is, if you publish a work, you will gain about 90% of all the money it will ever produce within the first 15 years. So, right now the term of a work for hire is 95 years. 15 years of that produces 90% of the money. The remaining 80 years produces 10%. I think that if we reduced the term of copyright to 15 years, that the public would gain quite a lot in terms of their freedom with respect to works. And authors would lose so little that they would still be about as incentivized with the shorter term as they were with the longer; they would still produce about as many works. In fact, when we add in the wealth of works that could form the basis for derivatives, we might see authors making more money than they were before, and the public doing even better, all by reducing copyright.

    Of course, a reduction in term length is only one kind of reduction, and I advise not getting too caught up in it. Reductions in scope — such as what kinds of works are copyrightable, or what exceptions exist — are also of interest. For example, we recently started copyrighting architectural works. But I bet that this did not incentivize the creation of architectural works. I bet that any recent developments there have had much more to do with improvements in technology used to plan and build structures, improvements in the economy, and so on. We could probably reduce the scope of copyright by removing architectural works from the ranks of copyright, and see no reduction in the creation of such works. Since the public is frugal with their copyright ‘dollar’ and wants the least copyright that yields the most benefit, this would be advantageous to the public.

    To divorce the distinct grant of rights from the public interest it seeks to serve is a nonsense.

    Meh. I’m interested in results. I really don’t care much whether the system appears sensible. In fact, I bet if we could quantify things a bit more (which shouldn’t be impossible, since copyright has nothing to do with judgments of artistic merit) we could get some evolutionary computer models to help guide us to the optimum copyright laws — the laws that yield the greatest public benefit. I bet that they would look quite organic, rather than merely being sensible-looking. Which I guess brings us back to architecture a bit, as computers have been a great help in designing structures that people wouldn’t have come up with on their own, but are in fact quite strong and attractive.

    A DRM condition cannot restrict the other files that the user accesses.

    Why?

    Microsoft has said that the 64bit version of Windows Vista, will not run drivers unless Microsoft has approved them. A user that wants to write his own version of something like Daemon Tools is simply out of luck unless he can a) afford to pay MS and b) doesn’t run into other obstacles, such as MS deciding that it doesn’t like that kind of software.

    Frankly, for someone on Prof. Lessig’s board, you seem to not recall his thesis that code can act as law.

    What is this “special equipment” that is required?

    I’m still thinking of SCMS. Consumer grade DAT decks, if they encountered a copy that had a flag set (the audio wasn’t even encrypted), would copy the audio, but set a slightly different flag in the copy. If you tried to copy the copy, the deck would refuse. Minidisc has the same thing.

    If you cannot afford professional equipment — and you shouldn’t need to, since DAT was all digital anyway, and we’re just looking at the kind of replication that a garage band would need — you may end up being unable to exercise your rights as an author with respect to your own work, because the hardware is designed to distrust you.

    All that’s needed is a slight tweak to the technology: TVs that only show authorized content from authorized publishers over authorized media and devices. Since DRM systems that can update themselves are being rolled out, you could just wait until the technology had been widely adopted before flipping the switch.

    It’s hardly paranoid. In fact, it is appallingly likely within the next, oh, ten years, I’d say, unless something is done about it. In any case, even if I am jumping at shadows, is it really a bad idea to take steps to ensure that the worst cannot happen, remote though you think it is? Think of it as contingency planning.

  95. Jim Powers says:
    February 27, 2006 at 9:37 pm

    “Allow DRM to exist?” Dude, DRM is nothing but encryption combined with quantifiably secure computing platforms. DRM already surrounds us and it is inciting far more creativity than the world without – ringtones (one of which has become a bonafied “hit”) being the least of these examples.

    And a crack is nothing but a bit of code that re-establishes the rights of the consumer. And, can you please name a single alternative to these DRM-ed ringtones? Um, on every phone I have ever encountered the only way to get a ringtone was through a DRM channel. Now, please really, I want you to tell me: “Even if there were ways to get non-DRM ringtones onto their phone, like say, via a little ringtone file-formatter program that anybody could use, you know, like musicians who may want their own music as a ring tone, they’d never use it. I can tell you that there is not a single motherfucking musician on the motherfucking planet who would want anything but a DRM-ed version of their ringtone on their loved-one’s phone. Also, if you could get non-DRM ringtones, you’d only want one from one of your sell-out musician friends doing a motherfucking Mariah cover!” Please tell me, really, I’m waiting. You know it wouldn’t be the same if you didn’t. I really guess that what I’m waiting for is for you to tell me that there are phones with non-DRM ringtone publishing pathways. Well, if there is I haven’t see one. Some choice, huh.

    No one is forcing you to use encryption, but to refuse others this right is to place yourself in league with repressive regimes across the world who deny their proletariat this right – Cuba and China again being prime examples. Why do you hink China prohibits the creation or possession of encryption technologies?

    No, poptones, Josh, nor anybody else said that as far as I can see in this thread.

    Adding these abilities more directly to the coe functionality of general purpose computing platforms is a technologically neutral means of adding quantifiable value. Once this technology is pervasive it will become increasingly harder for those regimes to keep the peasant and proletariate classes separated from it.

    Um…

    repressive regimes across the world who deny their proletariat this right – Cuba and China again being prime examples. Why do you hink China prohibits the creation or possession of encryption technologies?

    These two statements right next to one another. In the same post. You’re joking right? Seems to me that these “pervasive” technologies you’ve been gambling on aren’t going to be so pervasive.

    Corporations have the money to lobby for laws, but corporations also are readily held accountable for their actions when they violate our trust. We have the ability to enforce restrictions upon these corporations and the economic infrastructure to enforce them – peasants do not. To demand this technology be prohibited by all is to put yourself firmly in the hip pockets of corporations and repressive regimes the world over.

    Readily held accountable: Exxon Valdez, Love Canal, oh, and let’s not forget the Tobacco industry, how long did it take to make these shining corporate stars accountable? Poptones, you and ACS are sitting on a room somewhere fabricating this stuff up just for laughs right. I mean you can’t possibly be this blind.

    it is obvious freedom is not your goal, but oppression. You no more value the creative potential of that now silent 80 percent than the greedy corporations. Only to them this control represents Billions of dollars – to you it represents nothing but access to free pop culture trash.

    Pop culture may be trash, that I’ll grant, but you’re not making the alternatives very attractive.

  96. Jim Powers says:
    February 27, 2006 at 10:02 pm

    DRM is just coding. I dont see how it is so hard for any programmer to create a program that encodes sound files into DRM formats. You keep saying things like:-

    And worse still, you know or should know that DRM will harm artists outside of established pop culture because of an interesting confluence of facts. Fact: most people like pop culture; it’s not pretty, but there it is. Fact: pop culture actors (e.g. RIAA, MPAA, etc.) are rent seekers who hate unestablished artists that achieve success without them, and will try to keep them down or make them play within the system. Fact: if DRM allows an author to impose conditions on their audience, one of those conditions will inevitably be that the audience cannot enjoy pop culture unless he only enjoys pop culture

    well that seems to me to be the most paranoid post here. A DRM condition cannot restrict the other files that the user accesses. That is just fear mongering.

    You could choose some sort of arbitrary DRM, but the choice of DRM really isn’t going to be in your hands. For instance to get CSS keys for multiple regions you have to pay a license fee. Just because you have the software to do it means nothing. Now, some channels are making the DRM software cheap or free, others are not. HD-DVD and Blue-Ray will have hefty encode license fees. Now, of course you can choose not to go this way, but that probably means you will be forging DRM. In the end it is not fear mongering as one case does charge significantly, also, there are no guarantees that those shareware apps you seem to fancy won’t be put down and replaced with expensive alternatives. As poptones already pointed out a lot of these companies that get me angry like Apple, control the means of communication. So it is entirely up to them how much you will have to pay to play.

    DRM is the new divide and conquer cash cow.

  97. poptones says:
    February 27, 2006 at 10:29 pm

    You’re joking right? Seems to me that these “pervasive” technologies you’ve been gambling on aren’t going to be so pervasive.

    Where do they get their fucking technology? They get it from us. They get commodified technology because that’s what they can afford. When every fucking CPU rolling off the assembly line in Singapore contains encryption that’s what they’ll use. Inel might make two versions, but ultimately we know that won’t happen because somewhere along the line it will become so intertwined such divisions will no longer be practical in the commodified market. And when that technology does become commonplace regimes like the one oppressing the citizens of China will then start passing laws requiring it as they seek, again, to control its use. It will be no more effective then than it has ever been because there will always be someone, somewhere, helping those oppressed citizens overcome their oppressors. Meanwhile billions of people who don’t live under such totalitarian regimes will have new opportunities to actually benefit from this neutral technology.

    And sorry to burst your bubble again Jim (ok, really I’m not.. I’m delighted) but there are literally hundreds of handsets that don’t only allow DRM ringtones. It is up to the consumer to purchase – or not – any handset that meets their needs. If one of those needs is “no DRM on the ringtones” there are countless opportunities to fill that need.

    You make this too easy.

  98. poptones says:
    February 27, 2006 at 10:42 pm

    I’ve said no such thing. I said that works that use DRM should not get copyrights, and that the public should focus on attacking said DRM so as to get to the public domain works within.

    And I have pointed out to you, repeatedly, the potential benefits far outweight the population of this planet than merely you having the ability to make unlimited copies of mariah carey cds. That you refuse to this potential does not render it moot: the facts are most reasonable people would agree with me on this including humanitarians and representatives of oppressed peoples the world over.

    Feel free to be as selfish as you like. There’s really no point in further addressing your repetitious handwaving and ignorant fear mongering as you have already lost the case.

  99. poptones says:
    February 27, 2006 at 11:10 pm

    I steadfastly refuse to believe, after reading some of your previous posts cannot see, after all is said and done, that laws like the DMCA will have a profoundly negative effect on our society.

    Look: the stuff I have addressed regarding commerce – the ability to make a truly robust “ecash” admittedly does not, in any way, require this stuff be incorporated into the core of the desktop CPU itself. It could just as easily be incorporated into specialized cpus dedicated to the task exactly as is already being done with smartcards that are controlled by the banking industry. These cpus could be put into dongles that could connect via usb ports and even made attachable “peer to peer” without requiring an intervening host – ie you and I plug our “credit machines” together and exchange whatever currency we like.

    Problem there is AGAIN that this technology still requires protection in order to be truly trustworthy. at present the banks control the smartcards, not because they are trivially cracked (they aren’t) but because they seek control. They don’t want you and I to feel we can trust each other – they want to preserve that remote attestion that is built into their technology because this allows them control and security of profit.

    And even if you and I had these wondrous cash machines, without laws like the DMCA to protect those chains of commerce they would be so much trash – especially in your idealized anarchy where people are actively fucking encouraged to break down these lines of trust.

    but it’s not even just about the commerce. This same technology, built into general purpose desktops, would allow an incredible new level of interactivity the likes of which now cannot even be totally envisioned. Peer to peer games – immersive worlds – are not presently possible for this very same reason: there can be no trust that some will not violate the rules agreed upon by those who choose to participate. It’s literally as if we all have the opportunity to become supermen and you don’t want us to have that ability because some of us might become even greater bullies.

    Democracy only works for those who can afford it. Love canal was ultimately found out and the company, as mch as we were able, held responsible and laws were enacted to help prevent such a trajedy from happening again. Exxon Valdez the same; Enron, the same. We may not like the penalties exacted upon these violators but most victims feel that way – seeking revenge is a normal part of the human condition. That doesn’t mean the revenge we seek is always productive or just. But the fact is corporations can be held accountable a lot more readily than individuals, and much of the problems we face in this commodified digital realm are due to the intractability of policing it.

    Abilities are not rights. Widespread de minimus infringement was a product of a society of imperfect control. We had abilities but many of these “rights” you seek were never truly ours even under the old system – they were simply things we could get away with. This new media brings with it a paradigm shift in levels of control. We cannot offhand dismiss the vast potential benefits to humanity these new methods of crunching and exchanging data will bring simply because some of us refuse to accept the greater responsibilities that come with them.

  100. poptones says:
    February 27, 2006 at 11:32 pm

    I really don’t care much whether the system appears sensible. In fact, I bet if we could quantify things a bit more (which shouldn’t be impossible, since copyright has nothing to do with judgments of artistic merit) we could get some evolutionary computer models to help guide us to the optimum copyright laws — the laws that yield the greatest public benefit. I bet that they would look quite organic, rather than merely being sensible-looking.

    It’s interesting (and ironic) you should use the term “organic” in this context. With advances in fuzzy logic and genetic code there is no reason we could not have such a system built into drm mechanisms. We could have every general purpose pc equipped with a section of code that calculates what uses the user wants to make of bits of data, what uses are presently allowed, and makes judgements on “fair use” based on such calculations. By having standardized and codified licenses the system would weight the verious “popularities” and if it saw, for example, more people making use of more generous terms the more restrictive licenses would automatically adapt to compete based upon rules esablished by those who choose to employ them. I personally think that proposition is even scarier than the strictly legislative means, but I’ve only now thought of this thanks to our tirades in this forum. and so haven’t really considered it at much more than face value.

    There’s again a glaring problem with this, though – without being able to establish even a minimal level of trust that people will not “game the system” there is no way, at present, of creating such a machine. If we all had the ability to lock away bits of code – code that could not access any data that was not permitted it – then we could all employ these gadgets. So, again, you are putting forth an idea – and potentially a fantastic one – that relies on the sort of technology you most fear.

    Irony, thy name be fear.

    I’m going to hink about this and delve into it more deeply. I think I like it…. but do you?

  101. poptones says:
    February 27, 2006 at 11:39 pm

    I wonder if the professor actually reads all this nonsense? I think there’s been a lot of good stuff come from it even through all the emotion. Democracy fucking rocks.

  102. Jim Powers says:
    February 28, 2006 at 3:54 am

    And sorry to burst your bubble again Jim (ok, really I’m not.. I’m delighted) but there are literally hundreds of handsets that don’t only allow DRM ringtones. It is up to the consumer to purchase – or not – any handset that meets their needs. If one of those needs is “no DRM on the ringtones” there are countless opportunities to fill that need.

    Name one. An I don’t mean ones where you can use the built-in keypad to do this, I mean one where you can actually load a non-DRM ringtone from the outside.

  103. Jim Powers says:
    February 28, 2006 at 3:57 am

    Where do they get their fucking technology? They get it from us.

    China is already looking into building their own fabs. They’re building their own Linux (Red Flag), they won’t let it be subverted.

  104. Jim Powers says:
    February 28, 2006 at 4:46 am

    Abilities are not rights. Widespread de minimus infringement was a product of a society of imperfect control. We had abilities but many of these “rights” you seek were never truly ours even under the old system – they were simply things we could get away with. This new media brings with it a paradigm shift in levels of control. We cannot offhand dismiss the vast potential benefits to humanity these new methods of crunching and exchanging data will bring simply because some of us refuse to accept the greater responsibilities that come with them.

    poptones, really, you can’t do this. You can’t keep thinking that through technology we are going to right that which is wrong in the world by compelling people into conforming sobody’s arbitrary idea of what right and wrong is for each “digital” experience.

    Abilities are not rights. is true, but can you please think about this: Hollywood walked up the steps of the capitol and bought, with cold hard cash, the DMCA into existence. They used their ability to buy away my rights, explicit or not. It is in their right to lobby, but it was their ability to corrupt and confuse congress that put this law on the books. You may say this happens all the time and take a neutral position on the matter (chapter 11 of NAFTA comes to mind as another legal abomination, but I digress), but they used their combined right and ability to take away my rights, and yours. This problem is not only a problem with individuals it is also a problem with Libraries and Schools.

    I have read what you have written, considered it and simply don’t agree. Call me an ignorant motherfucker who can’t see a good thing when it comes, but I don’t see all the points in your picture connected with lines, and I see many of them connected with shackles. I see you have good intentions, but I see that they are leading you down a path of technocratic totalitarianism the likes the world has never seen. I do not see the net gain to the world you talk about. I’m just an ignorant motherfucker.

    You disagree, this does not make me or anyone else on this thread who disagrees with you a coward, or a fool, or ignorant. It simply means we are exercising our right to disagree, you would claim I do this through ignorance, lack of vision and understanding for that enables you to be better than I, so be it: you are better than I.

  105. Jim Powers says:
    February 28, 2006 at 4:55 am

    Another note on abilities and rights: many of our abilities are recognized as rights, and celebrated and protected under law. One of these rights is our communal ability to change the law to recognize or take away rights. The minimus infringements you talk about I want to replace with rights.

  106. poptones says:
    February 28, 2006 at 9:01 am

    China is already looking into building their own fabs. They’re building their own Linux (Red Flag), they won’t let it be subverted.

    And in that case, noithing we do will stop them. In fact, if they do so it renders your entire rant against this technology moot.

    That does not mean, however, they will be effective. There will still exist smugglers, just as there is now, who will bring in “contraband” technology and those who are able to obtain it may make positive use of just as we may.

    You can’t keep thinking that through technology we are going to right that which is wrong in the world by compelling people into conforming sobody’s arbitrary idea of what right and wrong is for each “digital” experience.

    Gunpowder. Nuclear energy. Refrigeration. Technology that is neutral cannot be blamed for improper applications of it. Even nuclear energy, which I personally agree is not worth the risks and, in fact, isn’t even really a solution to the problems being caused by oil and coal as it is still essentially a fossil fuel, has led to greater knowledge and research in other applications of the core technology which may, in fact, become adequate solutions in the near future.

    What is right and wrong for somebody’s “digital experience” is up to each for decide for themselves. Ensuring fairness and some measure of accountablity in some forms of that exchange as it suits both participating parties is an entirely positive progression of the applied science.

    Hollywood walked up the steps of the capitol and bought, with cold hard cash, the DMCA into existence.

    Wrong. The DMCA passed because it was, at the time, seen as a better option than not having the DMCA. Lawmakers recognized many of the positive protections it afforded, just as I have, and passed into law a “best effort” attempt. The DMCA was a first real attempt at such legislation. It is inherently flawed, but so is every law in some way: abortion rights ensure the death of a human life; the fourteenth ammendment ensures greater difficulty in holding debtors accountable for thier debts; repeal of the twenty first ammendment makes it more likely some wioll be killed on our nations highways by drunk drivers. No law is, or can be, perfect. As we learn lessons regarding unacceptable limits legislated by the DMCA its code will be altered to adap – if not under this regime, then under those that follow. If it fails to do this it will be a failure not of technology, but of democracy. It will be our own faults, and we will have far greater problems to contemplate than how many artists are being squashed because they can’t remix mariah.

    Look: record companies don’t want us shackled into an unproductive totalitarian economy any more than we should want it. Record companies cannot exist without some degree of editorial freedom otherwise they simply become propaganda machines for the state and there’s no money in that. Record companies cannot exist without artists who seek to express themselves, and totalitarian regimes aren’t exactly known for allowing such violations of “the common good.” Record companies need a thriving and diverse market – if we were all relegated to an oppressed peasant class it would mean the end for them because we’d all be too busy working in factories and struggling to obtain food we’d have no time for such banal indulgences.

    Your tirades against this technology and your overblown indignance at an industry you ultimately embrace even moreso than I, are not at all productive to the debate. Granted I am at times an incredibly overblown huff of wind myself, but at least I make a best effort attempt at not being a dogmatist. There are potential badd applications of every technology. TCP has potential to lend the state control, but it has equal if not greater potential to usurp some of that control. A state that seeks to oppress its people does not need tcp in order to do so – we already have plenty of that now. The potentials here are far greater to do good for those already being oppressed, if not by totalitariasm then by simple and cruel economic entrapment and lack of education, than the already existing potential owned by oppressive regimes the world over.

    One of these rights is our communal ability to change the law to recognize or take away rights. The minimus infringements you talk about I want to replace with rights.

    Fine. Then you change the fucking laws. it was never a right to begin with and to claim otherwise, even indirectly, only weakens your own arguments in opposition to a neutral technology.

    What of my challenge to Josh? His idea about a an adaptable “organic” system of licenses which better allow all creative expressions to compete in the marketplace?

  107. ACS says:
    February 28, 2006 at 3:13 pm

    Josh on the public interest you said:-

    I’ve pointed it out before, but here it is again. The public has equal interests in: having original works created, having derivative works created, having works published, having works have no copyright on them, or as little as possible (so as to be free to use them as they like), having works enter the public domain as swiftly as possible.

    I cant see where the public interest is in there nor its connection to the copyright regime. I assume you mean the balance between the interest of the author to have the means to publish his works and the interest of the public to use the artists works as part of thier own creation.

    I guess the only point of disagreement is when the public domain should get protected works. You seem to put more weight on the public domain side of the balance than on the individual authors side of the balance. Surely if you believe there is a public interest in having original works created then you must admit that there must be a copyright system yet you state Each of these is satisfied to a particular extent by any system of copyright, or none at all. seems a little bit hypocritical.

    But I must admit that you do believe a copyright system should be in place just for a reduced length of time:- I think that if we reduced the term of copyright to 15 years, that the public would gain quite a lot in terms of their freedom with respect to works. Now I agree with you with respect to computer technologies – on the other hand, books can have an extensive life span (To Kill a Mocking Bird sells almost thirteen times more copies per year now than it did in release) and movies (anyone seen Casablanca) and some songs (Beatles, Elvis etc) can often remain economically viable for more than 15 years. A blanket cut of coyright term across all works and subject matter is unlikely to achieve very much in “balancing the interests”.

    Reductions in scope — such as what kinds of works are copyrightable, or what exceptions exist — are also of interest. For example, we recently started copyrighting architectural works

    Good point, crap example. Architectural works have been copyright in the Commonwealth countries for over 130 years now. Its just the US that is behind – note sound recordings were only made copyright in about 1973 – Capitol Records v Naxos (sorry if its the wrong citation but I am not a US Lawyers).

    Microsoft has said that the 64bit version of Windows Vista, will not run drivers unless Microsoft has approved them

    I dont think that is DRM based decision making. I agree that it is architecture of the code that may refuse to operate a driver but its is not an issue of rejection based on DRM.

    I’m still thinking of SCMS. Consumer grade DAT decks, if they encountered a copy that had a flag set (the audio wasn’t even encrypted), would copy the audio, but set a slightly different flag in the copy. If you tried to copy the copy, the deck would refuse. Minidisc has the same thing.

    Why cant DRM encryption be applied after recording? Surely a master, unencrypted file could be used by a garage band and then encrypted on commercial release?

    Seems to me like you are creating problems not solving them.

    Jim:-

    You could choose some sort of arbitrary DRM, but the choice of DRM really isn’t going to be in your hands. For instance to get CSS keys for multiple regions you have to pay a license fee. Just because you have the software to do it means nothing. Now, some channels are making the DRM software cheap or free, others are not. HD-DVD and Blue-Ray will have hefty encode license fees. Now, of course you can choose not to go this way, but that probably means you will be forging DRM. In the end it is not fear mongering as one case does charge significantly, also, there are no guarantees that those shareware apps you seem to fancy won’t be put down and replaced with expensive alternatives. As poptones already pointed out a lot of these companies that get me angry like Apple, control the means of communication. So it is entirely up to them how much you will have to pay to play.

    Couldnt you just choose to use the cheaper channels and ignore the expensive alternatives? That does seem to be how the capitalist system has been working for the last couple of hundred years.

  108. Josh Stratton says:
    February 28, 2006 at 6:17 pm

    poptones–
    Abilities are not rights. Widespread de minimus infringement was a product of a society of imperfect control. We had abilities but many of these “rights” you seek were never truly ours even under the old system – they were simply things we could get away with.

    I disagree. Setting aside that de minimis infringement is in fact, not infringement at all (because the law does not concern itself with trifles), I think that it is important in all areas of law that enforcement is limited, and enforcement resources will tend to be prioritized. We have designed our laws with the understanding that enforcement will be imperfect, since never in history has perfect enforcement been realistically possible.

    I take this to mean that, if we suddenly did have the ability to perfectly enforce laws, that we would immediately find our laws to be greatly repressive, because we had designed with them laxity, and relied upon that laxity, and suddenly it would not be there anymore. People are not machines; they have norms of behavior. If the law is hostile toward these norms, a conflict will arise. Either the law will have to change, or people’s norms will. The former is much easier to change than the latter. And, for many laws, it is more proper to change the former than the latter; not all laws involve important issues of justice or whatnot, e.g. zoning laws.

    In the mid-20th century, the law was in conflict with norms as we dismantled segregation. While this was worth it, it wasn’t easy. Earlier in that century, the law was in conflict with norms as we tried to keep people from being able to drink. Prohibition, as it turned out, was not worth it, and we soon gave up the idea as having been a bad one.

    I think that perfectly enforced copyright, if copyright is as expansive as it is now, would be disasterous. People are willing to tolerate copyright because it does not generally get in their way and seems fair. If it gets in their faces, it will be dismantled, because most people prefer their freedom with regard to works than the lofty ideals of the copyright system.

    In the past, this was not a problem, since copyright was really only meant to be asserted against commercial entities in the copyright sphere, such as authors or publishers. It was not meant to be something that the general public needed to care about in their daily lives, any more than they usually needed to care about the intracacies of securities trading or aviation regulations. Since copyright is more and more often being used against the wrong kinds of people — the public at large — it’s appearing to be defective. I’ve been interested in broad exceptions that would return copyright to its status as a commercial regulatory system (the exception being a blanket one for any natural person who is not infringing for commercial purposes, whatever the nature of the infringement) and the danger DRM poses to such reforms is again a good reason to get rid of DRM. Basically, the world isn’t big enough for copyright and DRM, and the former is more responsive to the needs and desires of the people, meaning that the latter is the one that’s got to go.

    I live in Boston, and I certainly would not want to imagine life if it were impossible to jaywalk, or to busk, or to casually ignore traffic laws. These are important illegal activities, and frankly, if we couldn’t do them anymore due to conflicts with the law, I’d rather start ditching some laws. Life is not about strictly conforming to regulations, or having machines control the freedom of people.

    We could have every general purpose pc equipped with a section of code that calculates what uses the user wants to make of bits of data, what uses are presently allowed, and makes judgements on “fair use” based on such calculations.

    And it still wouldn’t work because fair use is the least quantifiable part of copyright, and is meant to accomodate unforeseen uses. What you’re describing has to do more with the idea of historic uses, and that’s just going to lead to stagnation. A computer can help us consider legal reforms. It cannot perfectly emulate what the Supreme Court would say on a given day, it cannot know all the facts, etc.

    Why is it that you have so much faith in machines, and so little in people?

    ACS–
    I cant see where the public interest is in there nor its connection to the copyright regime.

    Really?

    The dream of the public would be for everyone who wants to engage in some artistic endeavor to be able to do so, whether it is creating something new, or changing something extant, without having to worry about mere finances. All these works would be available to everyone to use as they wished, at no cost. Everyone could have the fullest library it was possible to have, read what they like, share it with others, and so on.

    It’s paradisiacal. Certainly I would be in heaven in a place like that. Sadly, this world of ours isn’t a perfect paradise. But still, that is the dream, and copyright is basically an attempt to get as close to that as we can.

    I identified the various elements of the public interest for you. By default, some are greatly satisfied, while others are not satisfied so much. And the constraints of the world make it impossible to maximially satisfy all of them at once. But we can fiddle with the system so that we satisfy more of them to a greater degree than we can by default, and thus get as close to our goal as it’s possible to get.

    I assume you mean the balance between the interest of the author to have the means to publish his works and the interest of the public to use the artists works as part of thier own creation.

    Let’s try a thought experiment:

    There is a farmer who grows carrots. Let us say he grows 10 carrots per week, and must take the week’s supply of carrots to a market in order to sell them. The market is 5 miles away. The roads are impassable in the dark, so he cannot leave until dawn. The market begins at dawn, and winds down through the day. If the farmer were to be at the market at dawn precisely, he could sell each carrot for $5. The price goes down steadily at the rate of $1 per hour (so at dawn+1, the price is $4), but does not go below $1 per carrot. The farmer goes to market via a donkey which moves at 1 mph, but which will move 1 mph faster if it is fed a carrot, 2 mph faster for 2 carrots, etc. The farmer wants to make the most money possible. The donkey wants to eat the most carrots possible.

    The farmer is the public. The donkey is the artists.

    If you run the numbers (and assuming I have not made a mistake in my calculations), you find that:

    The farmer makes $10 if he does not give the donkey any carrots since he gets to market so late. The farmer is not especially satisfied, and the donkey is not satisfied at all.

    If he gives the donkey all the carrots, he gets to market very fast, but has nothing to sell, and gets $0. The donkey is maximally satisfied, but the farmer is not satisfied at all.

    If he gives the donkey 2 carrots, he gets to market not especially fast, but does make the most money possible ($26.66) having arrived at dawn+1h40m when he sells 8 carrots for $3.33 each. The donkey is not especially satisfied, but the farmer is maximally satisfied.

    And if he gives the donkey 6 carrots (which is the point halfway between the 2 carrot scenario and the 10 carrot scenario) he gets to market pretty fast, but only makes a little over $17 because despite the higher price, he has fewer carrots to sell. Presumably, since this is the midpoint between the best solution for each, the farmer and the donkey are equally but not maximally or minimally satisfied.

    Which solution is best?

    If you are the donkey, it is the 10 carrot solution. If you are the farmer, it is the 2 carrot solution. Neither is especially fond of either the 0 carrot or 6 carrot solution, and none of the other solutions not discussed are of much interest here (feel free to work them out if you like).

    If we cared about balance, the solution we would implement would be the 6 carrot solution that does not satisfy either side, but is fair for both.

    But we don’t care about balance in copyright. The best solution is in fact the 2 carrot solution, because the decision ultimately lies with the farmer. The donkey does not get a direct say, but his behavior is merely considered as a factor. The farmer can’t reach his ideal solution without giving the donkey something. He can accept this, give the donkey the 2 carrots that have to be paid for the farmer to reach his ideal, and it’s fine. But the farmer is not a charity, and he will not give the donkey anything more than he needs to for his own purposes. Maybe the donkey doesn’t like this, but no one cares.

    Copyright is meant to serve the public interest. In practice this is going to mean giving authors something, so that we can wring the most value out of them. It does not mean that we give authors charity (particularly in the form of copyright, which would be the equivalent of giving homeless people lotto tickets instead of a warm meal and place to sleep) and it certainly does not mean that we tailor the system to give authors everything they want.

    It is appropriate that it is this way because copyright is an imposition on the rights of the public. It can be acceptable, so long as the public comes out ahead by having copyright, but it must never be to the ultimate detriment of the public. Why would we stand for that? It would be contrary to our own self-interest, and in copyright, everyone is self-interested.

    Is this clearer now?

    I guess the only point of disagreement is when the public domain should get protected works.

    No. I cautioned against thinking of the copyright bargain merely in terms of length. The scope of copyright is just as relevant.

    You seem to put more weight on the public domain side of the balance than on the individual authors side of the balance. Surely if you believe there is a public interest in having original works created then you must admit that there must be a copyright system yet you state Each of these is satisfied to a particular extent by any system of copyright, or none at all. seems a little bit hypocritical.

    No, as I said, there is no balance. I am for — and only for — the public interest. Note well that the public interest and the public domain are not the same thing. Having a public domain is in the public interest, but having works created is also just as much in the public interest. For a list of all the things in the public interest, go back to the earlier post where I listed them.

    Also note that even in the absence of copyright — as was the case prior to 1710 — authors still created works. This is quite similar to the way the donkey in the example will move at 1 mph even if it has not been given any carrots. This is because authors are motivated by more than copyright, as has been pointed out earlier. Fame, or artistic impulse, or the money to be made from a copy rather than by exploiting a copyright, are also ways to motivate artists. If this were not true, there would be no artistic works prior to the comparatively recent invention of copyright. So bear in mind that when we are discussing how to get the best copyright system, one option that is always available to us is to have no copyright at all. I think that the circumstances that would result in this being the best option are unusual (it’s like having the donkey go at a certain speed no matter if you give him any number of carrots or none at all) but should be watched out for. As I said, I think that architectural works are one of those areas where copyright needn’t exist at all, at least for now. It itsn’t leaving the public better off than we would be without it.

    Now I agree with you with respect to computer technologies – on the other hand, books can have an extensive life span (To Kill a Mocking Bird sells almost thirteen times more copies per year now than it did in release) and movies (anyone seen Casablanca) and some songs (Beatles, Elvis etc) can often remain economically viable for more than 15 years.

    Actually, I think that 5 years is appropriate for software, but this is neither here nor there.

    You’re making the common mistake of looking at successful works. I would instead urge you to look at all works. All the posts you have made in this discussion are copyrighted, and the amount of protection is equal to that of anything else, basically. But, and don’t be offended here, you’re not Elvis, you’re not the Beatles, and you don’t write classics of literature. Why should I treat you under the assumption that you will? It would be like making an income tax policy oriented around the idea that if we can tax Bill Gates tens millions of dollars or more annually, that he’s representative of everyone and that everyone can shoulder that kind of tax burden. It is silly.

    The fact that a miniscule handful of works has long term economic value is not what we should center policy around. We should consider all works, and frankly, 99.44% of works are economically worthless period, or at best have a teeny tiny amount of economic value related to their copyrights, almost invariably front-loaded as it were.

    Since in the vast majority of cases, works will only be valuable for a little while, we can reduce copyright terms and not reduce the benefit the public derives, since pretty much all the works that were created with long copyrights will still be created with short ones.

    We must also bear in mind that we must satisfy the public interest as a whole, and not merely some subset of it, such as promoting the creation of original works. For example, the current copyright system does not make it likely that I could be sufficiently rewarded to sculpt the moon into a piece of art. After all, it would be very costly for me to do it, so as an artist I wouldn’t unless I thought I could recover those costs and profit. Would it be a good idea for the law to be changed so as to provide me with the incentive I need? The answer: probably not. Whatever benefit the moon-sculpture would yield to the public, I cannot see how it could not be massively outweighed by the terrible cost that would be incurred in setting up the necessary copyright law to incentivize it: a perpetual term where everyone who so much as looked at the moon would have to pay hundreds of dollars, or something. Frankly, even though the moon-sculpture would be great to have, it is not worth the cost. The public is better off without it.

    If we have a copyright system that yields the maximum benefit to the public, some works still might not get created. And as sad as that is from an artistic point of view, when you look at the big picture, we are better off without them, because they come at too high a cost.

    A reasonable copyright system might result in people no longer making movies that cost hundreds of millions of dollars, and instead might result in people making more low-budget movies. (Although I wouldn’t entirely count on any of this: even a blockbuster makes the vast majority of its profit very very fast) This would not bother me. It is not because I am some kind of snob that turns up his nose at popular entertainment, nor am I some kind of slob that ignores niche works. It’s because I’m interested in the big picture, and it may very well be that the best possible copyright system is not the one that results in the creation of the most works. Since copyright is just as much about what people can do with works as it is about getting works created, this is to be expected.

    Architectural works have been copyright in the Commonwealth countries for over 130 years now. Its just the US that is behind

    So what? I am still terribly unconvinced that we need copyright in the architectural world. I think that it is not only not helping the public, but that it is in fact hurting the public. (in the sense that we’re giving carrots to the donkey in a scenario where carrots don’t make him go faster, and he’s getting so full that he is becoming logy and slower than he would be if we hadn’t bothered)

    Besides, you cannot make a good argument by pointing to what the UK is doing (or worse still, France). As we’ve all been taught by our mothers, just because the other kids are jumping off of a bridge, that’s no reason why we should do it too. Copyright laws in the US should be tailored to what is best for the US, with the expectation that other countries will do what’s best for them. This will probably mean that the laws are not uniform. That’s fine. Different strokes for different folks.

    Surely a master, unencrypted file could be used by a garage band and then encrypted on commercial release?

    Who cares? First, there’s no encryption on these, as I have pointed out. Second, maybe they lost their master copy, but they still have a legal right to use any copy they have (since they’re the copyright holders) and it’s all digital anyway, so there isn’t even a quality difference. Why should DRM get in the way of the artist just because he cannot afford expensive equipment that is not functionally better, aside from that it can ignore the DRM?

    Couldnt you just choose to use the cheaper channels and ignore the expensive alternatives?

    No. Copyright functions by setting up legal monopolies on commodity goods. It is hostile to the idea of competition and of the efficiencies capitalism produces (such as having copies sell at about marginal cost). DRM is even worse because it is the product of monopolistic collusion between publishers and hardware manufacturers.

  109. poptones says:
    February 28, 2006 at 8:47 pm

    I disagree. Setting aside that de minimis infringement is in fact, not infringement at all (because the law does not concern itself with trifles),

    Except that de minimis infringement is when one person makes a copy and shares it with, perhaps, one or two others. Ripping a cd and “sharing” it with your ten thousand closest strangers is not a trifle at all – it’s exactly what publishers do. Whether they charge for the work they “share” or not is irrelevant – it’s exploitation by force, and it is, simply, wrong. To disagree with this is to disagree with the foundation of our society.

    We have designed our laws with the understanding that enforcement will be imperfect, since never in history has perfect enforcement been realistically possible.

    It still isn’t. No one here has claimed DRM will ever be perfect. It will never perfectly stop the behaviour it is intended to stop. Irrelevant – it can present serious obstacles in a manner that reinforces social barriers to such behavior. Code is law.

    I take this to mean that, if we suddenly did have the ability to perfectly enforce laws, that we would immediately find our laws to be greatly repressive, because we had designed with them laxity, and relied upon that laxity, and suddenly it would not be there anymore. People are not machines; they have norms of behavior. If the law is hostile toward these norms, a conflict will arise.

    Uh huh. Well, it’s nice to know you’ve at least read a single chapter from the kind professor. Problem is, the ideals you are espousing amount to the tyranny of the majority. The majority can be every bit as repressive and exploitative as an elite of control. I live in Mississippi; there are still trees standing down here that bear scars from lynchings that, with every passing day, deliver mute testimony to the power and dangers of an oppressive majority.

    I think that perfectly enforced copyright…

    Irrelevant. copyright is not perfect, and no means of enforcing it will ever be. This isn’t about perfection; this is about opportunity and the management of electronic data. Copyright does not rely on electronic data, nor do the vast majority of works it protects.

    People are willing to tolerate copyright because it does not generally get in their way and seems fair. If it gets in their faces, it will be dismantled…

    Again, as a citizen of the south I can tell you there are plent of laws that get in a great many people’s faces every day and, so long as we have a constitution that embraces liberty and respect for others, those laws will still not be dismantled.

    In the past, this was not a problem, since copyright was really only meant to be asserted against commercial entities in the copyright sphere, such as authors or publishers.

    Copyright has no direct linkage to commercial activity. Copyright protects works from exploitation by nonprofits as well – even when those nonprofits constitute the majority of the citizenry. Because every one of us derives more benefits from this protection than we sacrifice, it remains just and fair.

    We are publishers. The fact we never before had such capabilities does not mean we just throw out an entire worldwide economy. If the balance needs to be adjusted, we adjust the balance… that doesn’t mean sacrificing the rights of others even through indirect censorship.

    It was not meant to be something that the general public needed to care about in their daily lives

    Absolutely, positively, incredibly naive and misinformed. Copyright was created to protect, primarily, the public’s right to access, express, and share in the fair exchange of information and knowledge. This is something the public very much needed to be concerned about, for without it we’d all still be learning to read from the bible and our “sciences” would be reserved for a carefully chosen elite. Copyright is, in many ways, the foundation of our democracy.

    Since copyright is more and more often being used against the wrong kinds of people — the public at large — it’s appearing to be defective.

    No. the public is defective. I’m not saying people are all wrong and should be squashed, I’m saying that computers and the internet delivered us, in a single decade, a paradigm shift for which we as a society were not at all prepared. The reason we are having mass prosecutions of copyright law against the public is because the public was unprepared for the responsibilities this technology delivered into their homes. As we race toward greater potential of dogmatic secular regimes possessing extraordinarily terrible weapons against humanity, this particular problem serves as a fantastic preparation for things to come. Perhaps this is the way evolution had to occur – first we must become connected and better able to share culture before we are “allowed” by fate to cross that next terrifying chasm.

    IOW, fate has delivered us a warning: don’t fuck this up…

    …still wouldn’t work because fair use is the least quantifiable part of copyright, and is meant to accomodate unforeseen uses.

    Then you didn’t read what I said. Copyright fostersIt cannot perfectly emulate what the Supreme Court would say on a given day, it cannot know all the facts, etc.

    Irrelevant. I don’t have the money to take a case to the supreme court. I don’t even have the money to bring suit against another software hacker who might use my gpl code in an unallowed fashion. The entire point is that this would allow some amount of democratizing the legal structures by pooling resources.. just as linux does, just as cc licenses do, just as sites like magnatune do for musicians.

    Why is it that you have so much faith in machines, and so little in people?

    This is a stupid question obviously intended to indict my sense of “humanity” (whatever that is). I don’t have absolute faith in machines.. actually, that would seem to be your feelings on the matter, as apparently you think that “perfect control” over data is not only possible, such “perfect control” could likewise exert “perfect control” over all humanity.

    The dream of the public would be for everyone who wants to engage in some artistic endeavor to be able to do so, whether it is creating something new, or changing something extant, without having to worry about mere finances.

    Then your dream is for us all to have anything we want, anytime, without cost or responsibility for its use. Sorry, but that’s not heaven – although, if you’re one who believes in such notions, it’s potentially a fantastically expeditious path to deliver us all there.

    All these works would be available to everyone to use as they wished, at no cost. Everyone could have the fullest library it was possible to have, read what they like, share it with others, and so on.

    then it is your responsibility to embrace authors who share this ideal; to reward them for their creations, to listen to them, to repurpose and share their message – to support them. You cannot have this freedom without responsibility,m and it is your responsibility to help others understand the merits of your beliefs. You will never accomplish that goal through force and coercion, and that is all you have, thus far, espoused.

    Let’s try a thought experiment…

    Try conducting one that is relevant. In your “experiment” the farmer could simply give the muel ten carrots to carry him to market and still have ten carrots to sell.

    Only problem is everyone else shares this exact capability, so when he gets to market the people just laugh at the stupidity of a farmer trying to earn a living selling something they all have in abundance. The farmer ends up eating the mule because he’s already sick of eating all those carrots and he has to survive while he tries to figure out a new way to earn a living.

    But wait.. he doesn’t have to earn a living because it’s a world of infinite abundance… see above.

    But we don’t care about balance in copyright.

    OK, I take it back: apparently you haven’t read the prof’s literature… or the bill of rights, for that matter.

    Also note that even in the absence of copyright — as was the case prior to 1710 — authors still created works.

    They created works only when they could survive. If they were lucky the got a benfactor in the form of a king or lord (record company) or find a place to build a theatre and charge admission (see Shakespeare) – or, like Mozart, he simply up and died.

    This is not the world of 1710. We have the ability now to enable what essentially amounts to ephemeral commerce – the ability for anyone possessing a modest investment in infrastructure to transcend geopolitical boundaries and to seek value wherever that ability takes them. Digital rights management is a necessary component of that capability.

    Now I agree with you with respect to computer technologies – on the other hand, books can have an extensive life span (To Kill a Mocking Bird sells almost thirteen times more copies per year now than it did in release)

    That’s because there are twenty times more students now being ordered to purchase it for lit101…

    …and movies (anyone seen Casablanca) and some songs (Beatles, Elvis etc) can often remain economically viable for more than 15 years.

    This is irrelevant. When those works come out of copyright the republishing of them will not be just because someone breaks out his dvd collection and starts ripping. Some works might be republished that way, but the ones that will have the most substantial value are more likely to be those of greatest quality or “modernized” expression. Those who seek to recoup the most value will try to locate the master recordings – which are still owned by their publishers.

    Excusing DRM because of the finite duration of copyright is moot from the start, because DRM only protects one means of publication Those who create the works will make an effort to keep their creative works around as long as possible because it’s in their economic interest – even when the works go into the public domain they can still license exclusive uses of their works. Just look at artists like Elvis and Jimmie Rodgers and Hank Williams, whose works have experienced popular resurgence in the UK since they entered the commons.

    You’re making the common mistake of looking at successful works. I would instead urge you to look at all works…. Why should I treat you under the assumption that you will (become popular)?

    Van Gogh sold one painting in his lifetime…

    For example, the current copyright system does not make it likely that I could be sufficiently rewarded to sculpt the moon into a piece of art…

    Hilarious. Where do you come up with these? No really.. pleased to meet me, ladies and germs…

    After all, it would be very costly for me to do it, so as an artist I wouldn’t unless I thought I could recover those costs and profit.

    Ummm… there’s already been projects involving “painting” the moon and launching billboards into space. Commercial art can find investors, and such projects are not beyond the realm of possibility.

    Eureka! Commercial art projects like this rely on benefactors and to claim this means charging “admission” simply to look at the sky is absurd. The entire goal of such a project would be for people to see it. Copyright and trademark might, however, prevent me from photographing the event and sharing it in unlimited fashion.

    Ummm.. what the hell does any of this have to do with DRM or digital communications? Oh, that’s right… nothing at all.

    A reasonable copyright system might result in people no longer making movies that cost hundreds of millions of dollars, and instead might result in people making more low-budget movies.

    Well, we know you and Jim won’t be watching them…

  110. poptones says:
    February 28, 2006 at 8:57 pm

    OK. I’m going to blame the dialup… take two:

    I disagree. Setting aside that de minimis infringement is in fact, not infringement at all (because the law does not concern itself with trifles),

    Except that de minimis infringement is when one person makes a copy and shares it with, perhaps, one or two others. Ripping a cd and “sharing” it with your ten thousand closest strangers is not a trifle at all – it’s exactly what publishers do. Whether they charge for the work they “share” or not is irrelevant – it’s exploitation by force, and it is, simply, wrong. To disagree with this is to disagree with the foundation of our society.

    We have designed our laws with the understanding that enforcement will be imperfect, since never in history has perfect enforcement been realistically possible.

    It still isn’t. No one here has claimed DRM will ever be perfect. It will never perfectly stop the behaviour it is intended to stop. Irrelevant – it can present serious obstacles in a manner that reinforces social barriers to such behavior. Code is law.

    I take this to mean that, if we suddenly did have the ability to perfectly enforce laws, that we would immediately find our laws to be greatly repressive, because we had designed with them laxity, and relied upon that laxity, and suddenly it would not be there anymore. People are not machines; they have norms of behavior. If the law is hostile toward these norms, a conflict will arise.

    Uh huh. Well, it’s nice to know you’ve at least read a single chapter from the kind professor. Problem is, the ideals you are espousing amount to the tyranny of the majority. The majority can be every bit as repressive and exploitative as an elite of control. I live in Mississippi; there are still trees standing down here that bear scars from lynchings that, with every passing day, deliver mute testimony to the power and dangers of an oppressive majority.

    I think that perfectly enforced copyright…

    Irrelevant. copyright is not perfect, and no means of enforcing it will ever be. This isn’t about perfection; this is about opportunity and the management of electronic data. Copyright does not rely on electronic data, nor do the vast majority of works it protects.

    People are willing to tolerate copyright because it does not generally get in their way and seems fair. If it gets in their faces, it will be dismantled…

    Again, as a citizen of the south I can tell you there are plent of laws that get in a great many people’s faces every day and, so long as we have a constitution that embraces liberty and respect for others, those laws will still not be dismantled.

    In the past, this was not a problem, since copyright was really only meant to be asserted against commercial entities in the copyright sphere, such as authors or publishers.

    Copyright has no direct linkage to commercial activity. Copyright protects works from exploitation by nonprofits as well – even when those nonprofits constitute the majority of the citizenry. Because every one of us derives more benefits from this protection than we sacrifice, it remains just and fair.

    We are publishers. The fact we never before had such capabilities does not mean we just throw out an entire worldwide economy. If the balance needs to be adjusted, we adjust the balance… that doesn’t mean sacrificing the rights of others even through indirect censorship.

    It was not meant to be something that the general public needed to care about in their daily lives

    Absolutely, positively, incredibly naive and misinformed. Copyright was created to protect, primarily, the public’s right to access, express, and share in the fair exchange of information and knowledge. This is something the public very much needed to be concerned about, for without it we’d all still be learning to read from the bible and our “sciences” would be reserved for a carefully chosen elite. Copyright is, in many ways, the foundation of our democracy.

    Since copyright is more and more often being used against the wrong kinds of people — the public at large — it’s appearing to be defective.

    No. the public is defective. I’m not saying people are all wrong and should be squashed, I’m saying that computers and the internet delivered us, in a single decade, a paradigm shift for which we as a society were not at all prepared. The reason we are having mass prosecutions of copyright law against the public is because the public was unprepared for the responsibilities this technology delivered into their homes. As we race toward greater potential of dogmatic secular regimes possessing extraordinarily terrible weapons against humanity, this particular problem serves as a fantastic preparation for things to come. Perhaps this is the way evolution had to occur – first we must become connected and better able to share culture before we are “allowed” by fate to cross that next terrifying chasm.

    IOW, fate has delivered us a warning: don’t fuck this up…

    …still wouldn’t work because fair use is the least quantifiable part of copyright, and is meant to accomodate unforeseen uses.

    Then you didn’t read what I said. Copyright fosters diversity – in this modern context it even fosters a diversity of licenses. In the regulatory model proposed these licenses are constantly adapting themselves to better compete for market share. If the strictest licenses are causing their protected expression to diminish in social significance, the terms automatically adapt to provide more opportunities for other artist to make use of those works as they would presently be making use of the works protected by more generous terms. The exact formulations involved would be up to the license “inventors,” but the details would adapt in wholly “organic” fashion – just as they do now, only more autonomously as entities unto themselves.

    It cannot perfectly emulate what the Supreme Court would say on a given day, it cannot know all the facts, etc.

    Irrelevant. I don’t have the money to take a case to the supreme court. I don’t even have the money to bring suit against another software hacker who might use my gpl code in an unallowed fashion. The entire point is that this would allow some amount of democratizing the legal structures by pooling resources.. just as linux does, just as cc licenses do, just as sites like magnatune do for musicians.

    Why is it that you have so much faith in machines, and so little in people?

    This is a stupid question obviously intended to indict my sense of “humanity” (whatever that is). I don’t have absolute faith in machines.. actually, that would seem to be your feelings on the matter, as apparently you think that “perfect control” over data is not only possible, such “perfect control” could likewise exert “perfect control” over all humanity.

    The dream of the public would be for everyone who wants to engage in some artistic endeavor to be able to do so, whether it is creating something new, or changing something extant, without having to worry about mere finances.

    Then your dream is for us all to have anything we want, anytime, without cost or responsibility for its use. Sorry, but that’s not heaven – although, if you’re one who believes in such notions, it’s potentially a fantastically expeditious path to deliver us all there.

    All these works would be available to everyone to use as they wished, at no cost. Everyone could have the fullest library it was possible to have, read what they like, share it with others, and so on.

    then it is your responsibility to embrace authors who share this ideal; to reward them for their creations, to listen to them, to repurpose and share their message – to support them. You cannot have this freedom without responsibility,m and it is your responsibility to help others understand the merits of your beliefs. You will never accomplish that goal through force and coercion, and that is all you have, thus far, espoused.

    Let’s try a thought experiment…

    Try conducting one that is relevant. In your “experiment” the farmer could simply give the muel ten carrots to carry him to market and still have ten carrots to sell.

    Only problem is everyone else shares this exact capability, so when he gets to market the people just laugh at the stupidity of a farmer trying to earn a living selling something they all have in abundance. The farmer ends up eating the mule because he’s already sick of eating all those carrots and he has to survive while he tries to figure out a new way to earn a living.

    But wait.. he doesn’t have to earn a living because it’s a world of infinite abundance… see above.

    But we don’t care about balance in copyright.

    OK, I take it back: apparently you haven’t read the prof’s literature… or the bill of rights, for that matter.

    Also note that even in the absence of copyright — as was the case prior to 1710 — authors still created works.

    They created works only when they could survive. If they were lucky the got a benfactor in the form of a king or lord (record company) or find a place to build a theatre and charge admission (see Shakespeare) – or, like Mozart, he simply up and died.

    This is not the world of 1710. We have the ability now to enable what essentially amounts to ephemeral commerce – the ability for anyone possessing a modest investment in infrastructure to transcend geopolitical boundaries and to seek value wherever that ability takes them. Digital rights management is a necessary component of that capability.

    Now I agree with you with respect to computer technologies – on the other hand, books can have an extensive life span (To Kill a Mocking Bird sells almost thirteen times more copies per year now than it did in release)

    That’s because there are twenty times more students now being ordered to purchase it for lit101…

    …and movies (anyone seen Casablanca) and some songs (Beatles, Elvis etc) can often remain economically viable for more than 15 years.

    This is irrelevant. When those works come out of copyright the republishing of them will not be just because someone breaks out his dvd collection and starts ripping. Some works might be republished that way, but the ones that will have the most substantial value are more likely to be those of greatest quality or “modernized” expression. Those who seek to recoup the most value will try to locate the master recordings – which are still owned by their publishers.

    Excusing DRM because of the finite duration of copyright is moot from the start, because DRM only protects one means of publication Those who create the works will make an effort to keep their creative works around as long as possible because it’s in their economic interest – even when the works go into the public domain they can still license exclusive uses of their works. Just look at artists like Elvis and Jimmie Rodgers and Hank Williams, whose works have experienced popular resurgence in the UK since they entered the commons.

    You’re making the common mistake of looking at successful works. I would instead urge you to look at all works…. Why should I treat you under the assumption that you will (become popular)?

    Van Gogh sold one painting in his lifetime…

    For example, the current copyright system does not make it likely that I could be sufficiently rewarded to sculpt the moon into a piece of art…

    Hilarious. Where do you come up with these? No really.. pleased to meet me, ladies and germs…

    After all, it would be very costly for me to do it, so as an artist I wouldn’t unless I thought I could recover those costs and profit.

    Ummm… there’s already been projects involving “painting” the moon and launching billboards into space. Commercial art can find investors, and such projects are not beyond the realm of possibility.

    Eureka! Commercial art projects like this rely on benefactors and to claim this means charging “admission” simply to look at the sky is absurd. The entire goal of such a project would be for people to see it. Copyright and trademark might, however, prevent me from photographing the event and sharing it in unlimited fashion.

    Ummm.. what the hell does any of this have to do with DRM or digital communications? Oh, that’s right… nothing at all.

    A reasonable copyright system might result in people no longer making movies that cost hundreds of millions of dollars, and instead might result in people making more low-budget movies.

    Well, we know you and Jim won’t be watching them…

  111. ACS says:
    February 28, 2006 at 10:22 pm

    Josh. I dont think balancing the interests in copyright is quantifiable as you suggest. I dont get all the donkeys and carrots and the integration or whatever in relation to copyright but you are on the right track, have a look at this notice that came through the email:-


    WIPO led developments in the economic analysis of copyright
    =====================================================================

    Jeremy Thorpe, Director, The Allen Consulting Group

    The World Intellectual Property Organization (WIPO) has published a standardised framework for measuring the economic contribution of copyright industries, and is currently developing a similar standardised framework for estimating the value of copyright piracy.

    If anyone can find it, cool. Onto more interesting things

    Also note that even in the absence of copyright — as was the case prior to 1710 — authors still created works. This is quite similar to the way the donkey in the example will move at 1 mph even if it has not been given any carrots. This is because authors are motivated by more than copyright, as has been pointed out earlier.

    Yes and it is also the reason Mozart died a pauper and we lost many years of his talent. Either artists work for thier food or they create works. Take away a system of reward and they will give up creating as thier main activity. That would be a loss. That is the public interest in a copyright regime.

    Besides, you cannot make a good argument by pointing to what the UK is doing (or worse still, France). As we’ve all been taught by our mothers, just because the other kids are jumping off of a bridge, that’s no reason why we should do it too. Copyright laws in the US should be tailored to what is best for the US

    Sorry I live in Australia which is a Commonwealth Country and therefore the analogy. We are still smarting over the US treatment of Dickens.

    No. Copyright functions by setting up legal monopolies on commodity goods. It is hostile to the idea of competition and of the efficiencies capitalism produces (such as having copies sell at about marginal cost). DRM is even worse because it is the product of monopolistic collusion between publishers and hardware manufacturers.

    Huh? Copyright simply pits authors against one another in economic competition. The monopoly is only over how many people can sell the product of the individual author. It doesnt prevent individual using cheaper channels.

  112. poptones says:
    February 28, 2006 at 11:16 pm

    The notion that copyright induces monopolies over commodity goods may have had some validty, but it – like so many other aspects of copyright – no longer applies in a world where everyone has a general purpose computing device and access to the network. This will especially become evident as sophistication of these devices expands to allow them to run multiple virtualized operating systems. at that point a “radio” is simply another piece of software – another entire operating system if need be – and it interoperates with other virtual appliances in a system that is entirely akin to present day entertainment systems.

    This is not the distant future. This is now. And it’s not just windows, either – linux now can run as a virtual process inside windows, and development efforts are working toward ways of making linux systems quantifiably secure. Most of those efforts I have seen still show some mistrust of tcp, however, even though I have a stack of tcp enable computing devices right here next to me – linux thinkpads – that work just fine with linux. And I can assure you they do not “phone home” or in any way prohibit me from installing whatever os on them I want.

    But I’m not sure you’re doing yourself any favors in regards to the WIPO stuff. WIPO often stands against the expressed concerns of the UN itself. WIPO far too often represents the interests the interests of the world bank and the world’s largest corporations while ignoring the far more imperative global social issues we are facing. You and I often agree, ACS, and even I’m no fan of WIPO.

  113. acs says:
    March 1, 2006 at 4:48 am

    WIPO may not be the best source. It was just an example of how copyright policy is written according to a qualitative and not quantitative analysis.

  114. poptones says:
    March 1, 2006 at 9:52 am

    I found the paper. Although it’s written from the perspective of the australian system, it’s fairly appropriate since their model for the copyright exchange is (of course) similar to ours. It doesn’t appear to have much of anything to do with the wipo, either – it was prepared by an organization and is offerd for sale via their website for $66. Ironically, they don’t seem to have muhc of a handle on website security since google has no problems locating it and offered m a direct download link.

    The paper was written a few years ago, I think in 2002, and it seems in places utterly oblivious to the ramifications of the internetand the controls possible via drm. Here’s an example:

    The impact of a change in the level of copyright protection on the number of works is considered using this model. An increase in the level of copyright protection has two effects in the model:
    .
    • it increases the gross profits of each author; and
    • it increases the fixed costs of each producer.

    It allegedly increases fixed costs because the producer will have to spend more to enforce those greater levels of allowable control. That’s true for physical goods, but it’s not at all true for a system that employs drm. With a DRM mechanism in place to aid enforcement greater levels of control are possible at exactly the same cost as before. In fact, the absence of a meaningful DRM is exactly what is driving up the cost of enforcement. Copyright holders of means are essentially passing this cost along to the marketplace by suing violators and then charging them what, on casual observation, appears to be “protection money” in order to make their lawsuits go away.

    Of course, they have every right to sue people who massively infringe upon them, and they would still likely do so even in a world of universal DRM. But the costs of policing such infringement might well actually drop simply because there would be so many fewer infringers. This is one of the points I’ve been trying to make clear in my defense of DRM: by creating code that reinforces social stigmas against casual incidents of even apparently trivial infringement (it’s harder for me to rip my cd, it’s harder for me to move my downloaded music to another computer) the user will be less likely to engage in these “allowed” activities before obtaining some modest education on the matter (there are already computer ready versions of songs on the cd, you need to move your encryption keys to the new computer along with the downloaded music). In the quest for this education they will become more aware of their responsibility not to publish those works.

    Oops. Must go for now… appointment.

  115. Josh Stratton says:
    March 1, 2006 at 10:41 am

    poptones–
    de minimis infringement is when one person makes a copy and shares it with, perhaps, one or two others

    No, that’s not what de minimis infringement is. De minimis infringement is a term of art. Here’s a definition from Newton v. Diamond, which dealt with whether using a sample that was 6 seconds long, and consisted of 3 notes, was infringing: “[A] use is de minimis only if the average audience would not recognize the appropriation.” Roughly, an infringement is de minimis when it is below the minimum threshold for application of the substantial similarity test (which involves looking to see whether an audience would find similarities). Because it is below the threshold, a de minimis infringement is not an infringement at all. De minimis isn’t an affirmative defense, it’s a failure to make the prima facie case. Your example certainly doesn’t fit the definition.

    What you’re talking about are ordinary infringements that just tend to go unnoticed and unpursued by anyone who could do bring an action. Given how many of these there are in the tort world (e.g. if you ever ‘borrowed’ a piece of paper or a staple from your place of work, you’ve engaged in conversion) I’m sure that there’s a bit of jargon to describe them. But you’ll need to find something other than what you’ve been using, as it’s already been taken.

    Ripping a cd and “sharing” it with your ten thousand closest strangers is not a trifle at all – it’s exactly what publishers do.

    I agree, though I think the non-commercial nature of the act is worth noting.

    Whether they charge for the work they “share” or not is irrelevant – it’s exploitation by force, and it is, simply, wrong. To disagree with this is to disagree with the foundation of our society.

    I disagree with both statements. I think that first, anything that could bar infringements of the second variety (which could be different from mere file sharing) is going to tend to bar infringements of the first variety. So the issue arises as to whether we want to lean on the side of the public or copyright holders. On this issue, I side with the public. I recognize that there’s a tradeoff in that this might result in some lessening of creation, but I think that it’s acceptable. Second, copyright is a simple utilitarian construct that couldn’t lie further from the foundations of our society. Copyright is more like, oh, the backyard gazebo of society. It’s nice to have, but you can get along okay without as nice of one, or without one at all if need be. The world will not come crashing down if we fiddle around with it. And indeed, we should fiddle around with it in order to make it a very nice gazebo indeed. But we should not try to use it to prop up society itself.

    No one here has claimed DRM will ever be perfect. It will never perfectly stop the behaviour it is intended to stop.

    Yes, yes, but you understand what I mean. If we put a cop at every intersection, we might still have one or two people managing to jaywalk, but the greater enforcement even if not 100% absolute would still be a bad thing.

    Problem is, the ideals you are espousing amount to the tyranny of the majority. The majority can be every bit as repressive and exploitative as an elite of control.

    And I am quite aware of the dangers of unchecked democracy too. In fact, I grew up in the South, and I’m a member of a minority that’s been persecuted historically.

    But copyright is not a civil liberty. Free speech is a civil liberty, equal protection is a civil liberty, due process is a civil liberty; these things aren’t copyright. Invoking the spectre of the mob isn’t much good here because there’s really nothing to get tyrranical about. Copyright is no more tyrranical than the idea of business licensing. I can’t even imagine how you could have a copyright system that was hostile to the civil liberties of authors without it being because it threatened a real civil liberty (e.g. if we denied copyrights to black authors). Of course, copyright is a low-level danger to the civil liberties of the public, since it is an imposition on free speech, which encompasses repeating verbatim what someone else has already said. Traditionally it hasn’t been a significant problem there (and in fact I must admit that I didn’t like the First Amendment argument in Eldred) although I fear that with DRM it could be. For example, what happens to parody if I can no longer rip song A and video B and put them together to hilarious effect? It is not acceptable to say that I should have to settle for using the analog hole (for as long as we have it), or that I should have to recreate them from scratch. If I’m lawfully entitled to make the parody, my choices as to how I go about it should not be an issue.

    Again, as a citizen of the south I can tell you there are plent of laws that get in a great many people’s faces every day and, so long as we have a constitution that embraces liberty and respect for others, those laws will still not be dismantled.

    And as I said, I think that ‘s good — if there’s a good enough reason to justify it. Desegregation is an excellent reason. Saying that liquor is bad for people is a piss-poor reason. Copyright is maybe not that bad, but it’s still not a good reason, much less good enough.

    Copyright has no direct linkage to commercial activity.

    I’m talking about the past. Heck, cite some cases between 1790 and, oh, 1909, where an author sued someone for hand-copying their book for noncommercial use.

    If the balance needs to be adjusted, we adjust the balance…

    And that is all that I have been suggesting. Adjusting the balance by allowing DRM but making it so unappealing that no one bothers with it. Adjusting the balance by letting copyright holders assert themselves against commercial or non-natural-person infringers, while leaving ordinary people engaged in unobjectionable but infringing behavior alone. Adjusting the balance by reducing the term and scope of copyright so that the public gets the most bang for its buck. And adjusting the balance by making copyright opt-in, so that it’s limited to situations where it is necessary.

    Copyright was created to protect, primarily, the public’s right to access, express, and share in the fair exchange of information and knowledge.

    And if it still did that, and had not been hijacked long ago by authors and publishers, we would not need to have this conversation. Right now, copyright is terribly broken. I am suggesting we fix it. Your suggestions will exacerbate the problem.

    Copyright is, in many ways, the foundation of our democracy.

    But now you’re being silly. “The foundation of our democracy,” indeed! Laughable, given that, say, Jefferson described them* as being an embarrassment to the public that only sometimes could be acceptable. I fear you’ve confused the gazebo of copyright with the foundation-stone of free speech.

    No. the public is defective.

    And if copyright is meant to serve the public, then it doesn’t matter whether you don’t like people or not. Me, I don’t see the public, a body which I am proud to count myself among, as being particularly flawed with regard to copyright matters. If there’s a flaw, it’s that too few people are attentive to fixing copyright and maintaining it, and that this negligence has led to the current situation.

    As we race toward greater potential of dogmatic secular regimes possessing extraordinarily terrible weapons against humanity, this particular problem serves as a fantastic preparation for things to come.

    This is incidental to the issue at hand — as is what you said — but the only dogmatic secular regimes I can think of have been Russia, China, and their ilk, and many of them already have those terrible weapons, and have had for some time. Right now most people are worried about the dogmatic theocratic regimes. Anyway, it’s not that important in this discussion.

    in this modern context [copyright] even fosters a diversity of licenses

    It shouldn’t have to. Licenses are my bread and butter. And they are just one big transactional cost. If the cost of licensure is too great — and this encompasses not only money, but getting lawyers to look at or negotiate licenses, tracking down licensors, etc. — then things just don’t get done, and nothing is fostered because it’s too much of a pain.

    I don’t mind some licenses in moderation, in really odd circumstances, or betwixt commercial entities that are used to doing business this way. But ordinary people should not have to care or deal with them ever in their everyday lives. The idea of a EULA makes me sick. That anyone other than lawyers, agents, or others in the publishing field should even be interested in licenses is terrible. If we were talking about health care, I’d be the one supporting a universal single-payer system where people could just up and go to the doctor if they needed to. You’d be the one saying that people need to individually obtain health insurance and micromanage the details to find some kind of expensive coverage that was limited to what they really felt they needed and could afford.

    actually, that would seem to be your feelings on the matter, as apparently you think that “perfect control” over data is not only possible, such “perfect control” could likewise exert “perfect control” over all humanity.

    You have me wrong there. Those aren’t my feelings on the matter, and by ‘perfect’ I mean ‘absolute’ not ‘good.’

    You will never accomplish that goal through force and coercion, and that is all you have, thus far, espoused.

    Ah, I was wondering if it would come to this.

    Liar.

    I have never suggested that force or coercion be used, and in fact I am adamantly against such a notion. What I have said is that bribery should be used.

    Force would be if I hit an author until he wrote a book. Coercion would be if I told an author to write a book or I will hit him.

    But bribery is when I tell an author that if he writes a book I will give him a reward for doing so.

    In your “experiment” the farmer could simply give the muel ten carrots to carry him to market and still have ten carrots to sell.

    No, according to the facts set up in the experiment, he only grows 10 per week. The nice thing about thought experiments is that you cannot argue that the facts are wrong. They’re stipulations, and you’re stuck with them.

    apparently you haven’t read … the bill of rights, for that matter.

    Copyright is in Art. I, not the Bill of Rights. If you’re going to make silly insults could you at least take care to do the most basic bits of fact checking? It’s just sad when people can’t even manage a proper insult.

    They created works only when they could survive.

    And as a former artist, I assure you, this is still the case. There is a reason we still have the idea of the dedicated artist that is starving in a garret. Most artists have day jobs to help finance their art.

    even when the works go into the public domain they can still license exclusive uses of their works

    How? I suppose they could say that the licensed copies are ‘authorized’ or something, but that’s not exclusivity with regard to the work itself.

    there’s already been projects involving “painting” the moon

    No, no, not painting the moon. I’m talking about sculpting the moon. You know, chipping away at millions of tons of lunar material like Michaelangelo chipped away at blocks of marble to create the Pieta. Imagine that, instead of a big round moon in the sky, it was a big statue of a guy riding a horse.

    Of course, this is the less ambitious of my space projects. I’d also like to move a few hundred especially visible stars (might have to make some by squishing together existing, smaller stars) to make new and innovative constellations in the sky. And without this ‘drawing imaginary lines’ stuff we have with the current constellations. I’m talking laser printer quality. 300 zero-magnitude stars per degree of arc, minimum.

    such projects are not beyond the realm of possibility

    I’m talking about my projects, not your wimpy examples.

    what the hell does any of this have to do with DRM or digital communications?

    So what? The scope of the original discussion was the Registrar’s comments on term extension. You’re the one that keeps trying to turn everything into a DRM-centered polemic.

    An increase in the level of copyright protection … increases the gross profits of each author

    That’s a silly study then. Just increasing protection will not necessarily result in authors’ profits increasing. If a work has no economic value, it’s not going to suddenly get an economic value just because it’s copyrighted longer. And most copyrighted works have no economic value. Again, I invoke the example of the posts others are making here.

    *Actually, Jefferson was talking about patents, but given the context of what he was saying, it works equally well as to copyrights, and what he was saying has often been quoted by the courts, including the Supreme Court, in copyright cases.

    ACS–
    I dont get all the donkeys and carrots and the integration or whatever in relation to copyright but you are on the right track

    Copyright is exactly the same kind of exercise in weighing comparative utility as the farmer scenario. The carrots represent copyright; the more carrots given to the donkey, the more copyright given to authors. In the example there, giving some copyright to authors is in the best interests of the public (without having to consider the interests of the authors in their own right), but giving too much copyright to authors is harmful to the public. Giving too little is not harmful to the public per se, but not as beneficial as it could be.

    As for the quote from WIPO, two things. First, I loathe WIPO, and I could not care less what they have to say. If a giant meteorite crushed Geneva tomorrow I would dance with joy. Well, re: WIPO. I have nothing against other people in Geneva. Second, I don’t think the quote is all that relevant. If they’re not trying to quantitize the benefits enjoyed by the public from, say, a strong public domain, then they’re probably just trying to skew things in favor of publishers & co. as usual. Those guys suck.

    That would be a loss. That is the public interest in a copyright regime.

    That is a public interest in copyright. There is an equal interest in keeping the reward as minimal as possible. If Mozart would write an opera on the assumption that he would earn 100 guilders from it over its copyright term, then it is criminally wasteful to give him a longer copyright that promises 1000 guilders. It is in the public interest to be frugal with the currency of copyright. Focusing only on incentivizing creation always seems to cause people to forget frugality. I won’t stand for that.

    We are still smarting over the US treatment of Dickens.

    Well, I am actually for unilateral national treatment, so whatever else you might think about my policies, the Dickens situation would not have been a problem if I had my way. However, even given the laws of the day, let me remind you that we would have been very happy for Dickens to emigrate here, which also would have solved things nicely.

    The monopoly is only over how many people can sell the product of the individual author.

    That’s roughly correct. So if the author has a marginal cost of $5 and sells at $10 (which is a nice markup), his copyright prevents me, an unrelated publisher, from printing his book at $6 ($5 to cover costs, and $1 for me). This means that the public could be getting that book quite cheaply, and the book is a commodity in that it’s the same book whether he prints it or I do, but the copyright monopoly prevents this. Like I said, copyright is an anticompetitive monopoly. It might still be worthwhile, but it is not really justifiable from a capitalistic perspective.

  116. poptones says:
    March 1, 2006 at 2:18 pm

    de minimis infringement is when one person makes a copy and shares it with, perhaps, one or two others

    No, that’s not what de minimis infringement is. De minimis infringement is a term of art. Here’s a definition…

    Um… I’m tempted to say “whatever” but my ego has overcome my ennui and so I will instead point out that my definition was similarly obtained from court doctrine – A standing SCOTUS ruling in which the exact example I gave was deemed “tantamount to” (if not exactly, I simply don’t recall) de minimis infringement. You’re welcome to disbelieve, I simply don’t care – anyone who wishes to call me on it is welcome to peruse grocklaw for, I believe, Sony v Disney. But I’m not even going to bother repeating this homework in defense of my argument simply because I’m right and I’m arrogant.

    …copyright is a simple utilitarian construct that couldn’t lie further from the foundations of our society.

    This has already been rebuked and yet, like so many other irrelevancies in your argument, you continue to repeat it. Democracy depends entirely upon the sustained efforts of an informed and educated public. If all publications are under the direct control of publishers or a tyrannical information elite it becomes impossible to properly educate and inform that public. Similarly, if no one has time to produce those works because they’re too busy seeking food and defending their cache from invasions of others, democracy cannot even be given birth – sadly, there are ample examples of exactly this truth across the world even now,

    Copyright is more like, oh, the backyard gazebo of society. It’s nice to have, but you can get along okay without as nice of one, or without one at all if need be.

    Every example in the world today thoroughly thrashes this assertion. Even in places like the FSU and parts of Asia, where they did or do not recognize or actively enforce external copyrights, they have more actively enforced their own. In the places of the world where even this has not happened, societies remain largely uneducated and impoverished and dependant upon those cultures that do enjoy these priviledges.

    If we put a cop at every intersection, we might still have one or two people managing to jaywalk, but the greater enforcement even if not 100% absolute would still be a bad thing.

    We’re not talking about putting a cop at every intersection. In fact, universal and reasonably trustworthy DRM would require fewer cops than we already have. It would also minimize the social and economic damage caused by copyright owners resorting to suing schoolgirls in order to convey the importance of allowing them reasonable security of the rights we as a society have long agreed have merit.

    copyright is a low-level danger to the civil liberties of the public, since it is an imposition on free speech, which encompasses repeating verbatim what someone else has already said.

    Not at all. Copyright works simply because it encourages people to create new speech even if that speech is extraordinarily similar in expression to existing works. Just as windows fostered the growth of linux, hollywood movies foster further speech in others who may, in turn, make their own works available under more generous terms. And it just so happens those are also the authors who would most benefit from more direct means of “remixing” as it would lend them greater exposure in the marketplace of expressions.

    Every single one of these arguments you have tried to put against copyright has been easily refuted. are you really trying? I’m beginning to feel like I’m being gamed and you’re jsut waiting to pounce.. but after more than 100 posts on this topic I must admit the “game,” if it be, is becoming tediously trite.

    For example, what happens to parody if I can no longer rip song A and video B and put them together to hilarious effect? It is not acceptable to say that I should have to settle for using the analog hole (for as long as we have it), or that I should have to recreate them from scratch. If I’m lawfully entitled to make the parody, my choices as to how I go about it should not be an issue.

    Copyright and the legal quagmire of “fair use” was never established to allow you the unfettered right to repurpose the works of others. Parody does not constitute republication. By strongly encouraging you to recreate that work from scratch the progress of the arts is advanced in countless ways – you must expand your creative expression to include production, possibly even locating actors or other musicians and employing them, possibly becoming more active within your community in order to locate property holders willing to provide land and materials for settings… in every way copyright encourages you to create more.

    At the other end of that spectrum, where you “rip and remix” for your personal use, DRM does not prevent you from doing so simply because DRM can never be perfect. But the presence of DRM itself strongly encourages you to think twice about the potential value of your work: is it worth more to you as a quick and easy means of expressing yourself to a friend or small gathering of friends, or is it something you may actually hope to find a greater audience? And, if it does someday merit publication, is it worth more to you to secure those neccessary rights via economic incentives to the existing rights holders, or is it worth more to you, instead, to simply own the rights to all the property you create? No one is forcing you to become a squatter on someone else’s expression – but if you should choose to become one, copyright is a fair and just means of encouraging you to strive for greatness.

    Sorry, you still haven’t demonstrated any value at all in lessening either the strength or the scope of copyright. Terms are, I think, too long by about an order of magnitude, and I also think there could be merit in requiring “reregistration” of default copyright after a period of years (maybe a decade) so as to allow it substantially longer duration. In this way everyone still has the same rights and abilities and unpopular voices retain enough protection to allow them apportunity to become popular before require more investment on the part of their creators.

    But in no way have either of you shown any value at all in weakening the present copyright regime beyond such tiny measures. And more directly to the argument I have made, you have not provided any reasonably meriitorious examples of the “dangers of DRM.” Lots of hand waving and fearmongering… but nothing that could even be called objective or even rational.

    Copyright has no direct linkage to commercial activity.
    .
    I’m talking about the past. Heck, cite some cases between 1790 and, oh, 1909, where an author sued someone for hand-copying their book for noncommercial use.

    Irrelevant. This isn’t 1909 or even 1989. Cite one case from pre 1900 where a publisher filed suit over someone taping a sound recording for personal use. Copyright evolves to adapt to the technology that lends voice to artists.

    Duh.

    And that is all that I have been suggesting. Adjusting the balance by allowing DRM but making it so unappealing that no one bothers with it.

    No, what you call for isnt’ balance at all – it is significant imbalance You are, in fact, endorsing legislating against technology. There are very rare cases where the public danger might be so great that measure would be justified. Extremely rare. Nuclear bomb and chemical weapons rare.

    Adjusting the balance by letting copyright holders assert themselves against commercial or non-natural-person infringers, while leaving ordinary people engaged in unobjectionable but infringing behavior alone.

    Casual infringers who break DRM for personal use as they are able will have nothing to fear since there is still no means of policing what you do in your home. We even have existing legislation that prohibits publishers from “snooping” on the contents of your home computer without your explicit consent.

    Those who break DRM and massively infringe copyright, howeever – by republishing works against the wishes of those who created them – will be subject to greater penalties due to the unfairness of their actions.

    In fact, the DMCA, even as originally crafted, is a “positive” law much like you are suggesting: there is substantially less penalty awaiting me if I republish unprotected works than if I republish protected works. This acknowledges the new potential we all enjoy – to be both creators and publishers – while reinforcing our responsibilities as publishers to not infringe upon the rights of other creators as we exercise our newfound talents.

    Damn, I should run for Congress…

    Copyright was created to protect, primarily, the public’s right to access, express, and share in the fair exchange of information and knowledge.
    .
    And if it still did that, and had not been hijacked long ago by authors and publishers, we would not need to have this conversation. Right now, copyright is terribly broken. I am suggesting we fix it. Your suggestions will exacerbate the problem.

    Um… no. Your suggestions would break it considerably by rendering it essentially moot to anyone except those “evil publishers” you accuse of coopting it. Here is a perfect example, based on game theory, that I have “repurposed” from the previously mentioned australian paper on copyright:

    You and I are both publishers (we are, you must admit). I want to produce my blockbuster production of Gilligan’s Island revisited. You also would like to be able to publish such a blockbuster production. Moreover, because we’re both such obsessive Gilligan’s Isalnd fans we’d love to simply expereince such a revival.

    I face the obstacle of creating my expression, as do you. And in my expression I would love to see them stay on the island because I am excited about the franchise potential of watching them all grow old and slowly start dying off on the island. You, on the other hand, are more excited about seeing how they finally manage to overcome Gilligan’s clumsiness and escape, then struggle to reintegrate themselves into society. You want excitement and drama; I want slapstick hijinx and dark parody.

    We both face the obstacle of amassing production costs and then recouping that investment. It is in both our interests to simply wait until the other publishes his creation and then “remix” that content and possibly add onto it, thus substantially reducing our own financial and creative investment in that expression. As “enthusiasts” it is in both our interests to simply wait until someone else does all the work, then sit back and enjoy the show.

    It is both our interests not to publish.

    Without copyright we could end up waiting forever simply because neither of us can recoup that investment. It’s the classic mexican standoff; We might be able to pool our resources and come up with an expression that would allow us both to recoup our collective investment, but in both cases our expression, as well as our potential return on that investment, will be compromised.

    With copyright neither of us is allowed to usurp the other’s expression. And with copyright neither of us compromises either creative or financial return potential. In this manner both of us are actively encouraged to produce and to publish our production – exactly as copyright was intended.

    We are each encouraged to pull the trigger in this standoff. Both of us get to die heroes.

    Hilarious, huh?

    Copyright is, in many ways, the foundation of our democracy.
    .
    But now you’re being silly. “The foundation of our democracy,” indeed! Laughable, given that, say, Jefferson described them* as being an embarrassment to the public that only sometimes could be acceptable. ..

    Wow, did you take that bait! It was Jefferson I was, in fact, paraphrasing because it was Jefferson who said exactly that about public education. and in order to educate the public in latin (something which we stupidly removed from the curriculum and are now suffering greatly for) and mathematics and both the “hard” sciences and creative arts, you need access to timely and informative creations – you need publishers. And publsihers – you and I – have to eat. In order to support such a scholarly system you either need to have the state act as not only educator but publsher, or you need to incite someone else to take up that effort. It was the right of copy that both protected the public and private need to that end.

    I will also point out that Jefferson, one of my most favored heroes, was also quite an idealist in his “youth” and not only accepted the potential to benefit from these “monopolies” but throughout his life defended them ever more vigorously. Read his letters and see for yourself.

    And if copyright is meant to serve the public, then it doesn’t matter whether you don’t like people or not.

    You are not the public. I am not the public. Copyright doesn’t demand we like each other, but copyright explcitly demand we respect one another’s wishes and beliefs. I have seen little of that in your arguments to essentially “overthrow” DRM and make copyright only available to what would essentially constitute popular speech..

    in this modern context [copyright] even fosters a diversity of licenses
    .
    It shouldn’t have to. Licenses are my bread and butter.

    And I’m not even a trained legal professional yet I’ve been able to shoot holes in pretty much every argument you’ve presented. I guess that well proves the value of the internet in fostering an informed and educated proletariat…

    …they are just one big transactional cost. If the cost of licensure is too great — and this encompasses not only money, but getting lawyers to look at or negotiate licenses, tracking down licensors, etc. — then things just don’t get done, and nothing is fostered because it’s too much of a pain.

    Hilarious. As I’ve already shown, DRM is a mechanism which seeks to lower those administrative costs. By reinforcing social stigmas against infringement it seeks to lessen the present plague of individual incidents of massive infringement and, via watermarking and already existing legal “code” it provides a greater means of prosecuting those who do violate our social trust. Furthermore, the present copyright regime minimizes “up front” costs toward that end by allowing these protections by default. If I publish, it is protected; if I encrypt, it is protected more. And these rights need only financially impact me or the courts when I choose to enforce them. In every way the present system is quantifiably more efficient than the anarchy you stubbornly continue defending.

    You will never accomplish that goal through force and coercion, and that is all you have, thus far, espoused.
    .
    Ah, I was wondering if it would come to this.
    .
    Liar.
    .
    I have never suggested that force or coercion be used..

    Hilarious. Anyone reading this thread need only flick up the page to see you have, in fact, done exactly that. You still do it. You must have a terrifically poor opinion of people to assume we are all so stupid.

    So now you resort to calling me a liar?

    How banal.

    What I have said is that bribery should be used.

    Encouraging people to break DRM is a textbook example of force.

    I hope none of your clients are reading this exchange…. (pssst… call me.. ring ring!)

    An increase in the level of copyright protection … increases the gross profits of each author

    That’s a silly study then. Just increasing protection will not necessarily result in authors’ profits increasing. If a work has no economic value, it’s not going to suddenly get an economic value just because it’s copyrighted longer.

    Man, ditto what I just said. Increasing protection does not simply mean extending terms. It can also mean increasing scope. And the study is most certainly correct in this – if I encrypt my work so only a few can make use of it (those who will use my decryption software) and my work is unpopular, then I am better able to secure my profits in each individual embodiment of it. And, with fewer embodiments in the world, I have less overhead in policing infringement and greater ease of tracking down the offender. Increased control maximizes return and reduces administrative costs.

    And, if my work should somehow become popular, those same restrictions still lend me the ability to charge a higher price for individual embodiments than if everyone were able to simply download them off kazaa and that control lends more efficiency in policing this greater number of individual embodiments against infriingement.

    (I’m guessing logic wasn’t your strong suit in college.)

    And most copyrighted works have no economic value. Again, I invoke the example of the posts others are making here.

    Van Gogh sold one painting in his life. Many artists become popular only after “paying their dues” many, many years. In Van Gogh’s example lengthening copyright would serve no end, but in every example where it matters – where the artist is still alive – it can matter.

    Actually, Jefferson was talking about patents, but given the context of what he was saying, it works equally well as to copyrights, and what he was saying has often been quoted by the courts, including the Supreme Court, in copyright cases.

    Actually, in regard to patents, jefferson even defended his responsibility to pay patent licenses to an inventor for making use of certain technologies on his own plantation. An invention for which he, in fact, could find examples of “prior art” dating back as far as ancient Egypt.

    Again, I invite you to read his letters…

  117. poptones says:
    March 1, 2006 at 3:53 pm

    If Mozart would write an opera on the assumption that he would earn 100 guilders from it over its copyright term, then it is criminally wasteful to give him a longer copyright that promises 1000 guilders.

    If a child will struggle in a factory for a dime a day to feed her starving family, it would be criminally wasteful to give her a dollar…

    Eh?

    Again, your unmercifully exploitative ideals shine through. Worse, basing copyright on these cruel notions would make us all party to fascism.

    “I won’t stand for that.”

  118. ACS says:
    March 1, 2006 at 5:44 pm

    That’s roughly correct. So if the author has a marginal cost of $5 and sells at $10 (which is a nice markup), his copyright prevents me, an unrelated publisher, from printing his book at $6 ($5 to cover costs, and $1 for me). This means that the public could be getting that book quite cheaply, and the book is a commodity in that it’s the same book whether he prints it or I do, but the copyright monopoly prevents this. Like I said, copyright is an anticompetitive monopoly. It might still be worthwhile, but it is not really justifiable from a capitalistic perspective.

    You are still thinking that a single work is a market within itself. The correct view is that works are in competition with other works. In that sense many people competing to sell thier works create competition and yet protects the participants from being robbed of thier reward by piracy.

  119. Jim Powers says:
    March 1, 2006 at 5:44 pm

    poptones,

    After all is said and done, I don’t know what you stand for. Do you feel up to the task to spell it out for the world to see?

    At least it will give us a chance to use all sorts of diatribe related words.

  120. Jim Powers says:
    March 1, 2006 at 8:05 pm

    poptones,

    The voice that will be heard, on his own terms, forever.

    The loser geek who has seen the truth and hope of the world through the law that takes away choice, but allows me to be heard on my own terms, forever.

    The see-er of visions. The supplier of solutions.

    The open mind that listens only to the club of his own worshipers.

    The fucker of mothers and only spits true.

    The dickless mannequin posed by all true writers of the truth, true to his bot-like beliefs he hears them, unaltered, forced down into his mind on their terms, true, pure, he does this willingly.

    A person who has read more than you.

    Reads better than you.

    Thought more than you.

    Thinks better than you.

    Masturbates more than you.

    Masturbates better than you.

    Knows more than you.

    Knows better than you.

    Understands more truth than you.

    Understands better truth than you.

    Is more than you.

    Is better than you.

    Faultless.

    Laugher of the true laughs.

    Watcher of true movies.

    Listener of true music.

    A person who only writes true code right the first time, no questions, no revisions, no doubts. As in all of his holy works, follow him and you will be free.

    The see-er of hypocrisy in all strangers.

    Your saviour. From yourself, you own error-strewn thoughts, worthless: he will smite them.

    The champion of trustless trust.

    Usurper of all tools that let people read, see, hear, speak, and think. For only the worthy shall control these.

    Decider of what can be, should be, must be.

    The dam that holds back the future.

    Builder of nations, voice for the weak.

    The person who’s own contradictions add weight to his arguments, defy him he only grows stronger, for he cannot be defied. He is tautology.

    Angry because the world listens to Mariah and Spears, and not to him.

    He can’t even fondle their breasts, skank, whore.

    Leader of the one true culture, unpopular. He will convert all to it, then reject it.

    Benefactor of freedom, user of free software, knower of a truer freedom through total DRM. There will be no remix, for the law has sayeth such. Know this and you will know true freedom.

    Thinks little of himself, teaches gently so you can see the light as well, for he is patient and kind.

    The second Solomon: wisdom streams forth.

    Amen.

    Copyright (c) 2006 the world
    Forever unalterable, there will be no remix, courtesy poptones.

    poptones,

    You are a disgrace, an embarrassment to the world of free software. You are a sell-out and a force against freedoms. You should do the just thing and erase your hard disks and install Windows XP. Yeah, my writing sucks, but it is better than you. Feel free to copy-cat because that’s all you can do: quote others and do like others. You ain’t fucking original: you are some mutated cancerous aggregation of other people’s ideas. Instead of of even trying to think of this thing WE create called law as a way to do good for as many as possible, you want control, TOTAL CONTROL. You want to see a fucking dictator, you want to see a fucking hypocrite? Look in the mirror.

    I have become poptones, the destroyer of worlds.

    Now, I’m off to to the bathroom to vomit.

    Josh,

    Please stop wasting your time with this loser.

  121. poptones says:
    March 1, 2006 at 11:39 pm

    Thanks Jim. That’s fucking awesome!

    I must be doing so much better in this exchange than I had even suspected in order to draw such mockery and personal mud slinging…

    I rock! And so do you for taking time to create such an ode…. thanks.

  122. Josh Stratton says:
    March 2, 2006 at 10:58 am

    Poptones–
    Sony v. Disney

    Actually, I don’t recall any notable copyright cases between them. You’re really going to need to provide a cite, since I’m not really willing to take you at your word, and you’re the one who is invoking this.

    [That copyright is utilitarian] has already been rebuked

    Except that it hasn’t. Re: your gibberish about democracy, first, copyright does not tend to concentrate power in publishers. Whatever power publishers have, it is because they tend to have capital and resources (equipment, contacts in retail, etc.) that most people lack. This is why they had power even when there was no copyright at all. And why DRM plays into their hands. Hell, why would they support the idea if it was a threat to them? They’re not stupid. Second, copyright generally doesn’t prevent keeping the public informed (though if, say, a leaked company document detailing horrible crimes or torts were sufficiently DRMed, the whistleblower might be easy to track down and the news media might be unable to effectively expose or even investigate the contents despite the clear fair use at hand). So that’s just more silliness on your part. And third, property is also a utilitarian construct, and since it is commonly agreed that we’re better off having a real society despite having to agree to respect one another’s property claims, you’re just illustrating my overall point for me. Thanks for agreeing with me, but I don’t need the help.

    We’re not talking about putting a cop at every intersection.

    We are, because DRM is the cop. Do you have a problem understanding metaphors? This isn’t the first time you’ve taken them way too literally.

    Copyright works simply because it encourages people to create new speech even if that speech is extraordinarily similar in expression to existing works.

    Substantial similarity to works likely to have been accessed is actually just the sort of thing that results in an infringement action. Are you familiar with the songs of George Harrison? Need I say more?

    Every single one of these arguments you have tried to put against copyright has been easily refuted.

    I’ve never argued against copyright. I think copyright is a great idea, and it would be nice if we implemented it properly. So far my arguments have not been refuted, at least not by you. Just because you have delusions as to your own abilities and do not understand what people say to you hardly means that your misperception of reality is in any way accurate. You could probably start dropping acid whilst composing your posts and it would only make you more lucid.

    By strongly encouraging you to recreate that work from scratch the progress of the arts is advanced in countless ways

    No, it’s not. Copyright encourages people to make their contribution, no matter how trifling. If Alice is a brilliant parodist who cannot sing, play an instrument, or act, she should not have to bear the burden of getting others to do that for her. Her parody is just as much a parody whether she reuses the work of others to the extent necessary to do what she’s doing, or whether she goes the (expensive and arduous) route you suggest. I dare you to find caselaw supporting your hilariously stupid interpretation of fair use. Also, if you’re going to say ‘progress’ at least use the appropriate Constitutional language. Copyright deals with the progress of science; patents deal with the useful arts.

    where you “rip and remix” for your personal use, DRM does not prevent you from doing so simply because DRM can never be perfect

    DRM indeed prevents people from doing this. Even if it is surmountable, the laws underlying DRM make it illegal to do this. And even when it is surmountable, that is an obstacle that should not exist. I know you lack the ability to understand metaphors, but DRM is the boulder blocking the road to personal use.

    But the presence of DRM itself strongly encourages you to think twice about the potential value of your work: is it worth more to you as a quick and easy means of expressing yourself to a friend or small gathering of friends, or is it something you may actually hope to find a greater audience?

    Congratulations. This is the craziest thing you have ever said. It’s also wrong, but that’s overshadowed by how terribly bizarre it is. I’m so glad that you live in your own little world, but would it be too much to ask for you to not try to drag everyone else down with you?

    Terms are, I think, too long by about an order of magnitude

    So you think that terms should be 1/10th of the author’s life + 7 years? I’m interested to know how you can predict the length of their life in advance like that.

    and I also think there could be merit in requiring “reregistration” of default copyright after a period of years (maybe a decade) so as to allow it substantially longer duration.

    The proper word you’re grasping drunkenly for is ‘renewal.’ As in, when copyright laws were more sane than they are now, a term lasted 28 years and could be renewed for 28 more, at the end of the first term.

    nothing that could even be called objective or even rational.

    Actually, your posts have convinced me that you would not know rationality if it bit you in the face.

    Copyright evolves to adapt to the technology that lends voice to artists.

    Which is why my example dealt with books, and the hand-copying of books. So that you could not avoid the question with gibberish about technology. The technologies in my example are ancient. I didn’t even say that the book was printed with movable type.

    You are, in fact, endorsing legislating against technology.

    More or less, yes. Of course the technology is never outlawed, under my proposal. Just made unappealing because an alternative is offered that is much more enticing. This is because I wish to maintain the copyright balance and DRM is hostile toward that.

    There are very rare cases where the public danger might be so great that measure would be justified. Extremely rare. Nuclear bomb and chemical weapons rare.

    Or unleaded gasoline rare. Or a child might choke on a part of a toy rare. We regulate technologies and impose liability on everyone involved with even slightly harmful products all the damn time. And yet civilization hardly seems to be collapsing. And again, I’m not suggesting that we ban anything. Just that we make something unpopular by bribing people to not use it.

    the DMCA, even as originally crafted, is a “positive” law much like you are suggesting

    Don’t tell me what I’m suggesting. I’m suggesting that we take most of the DMCA and light it on fire, it’s so bad. Furthermore, while I understand that you’re saying that it attempts to shape the behavior of the public, I am in fact strongly against that. I don’t want to shape their behavior particularly. I want their natural behavior to shape copyright, and I want copyright to shape artists’ behavior. I’m a big believer in having copyright law follow the norms of the public, and not the other way ’round. Given how rampant copyright infringement has become, it seems evident to me that the public agrees, or else they wouldn’t be doing it.

    Damn, I should run for Congress…

    You would fit right in.

    It is in both our interests to simply wait until the other publishes his creation and then “remix” that content and possibly add onto it, thus substantially reducing our own financial and creative investment in that expression.

    Almost. You almost had it. You forgot about the first mover advantage. And you forgot that if you plan on having your remake be a commercial project (i.e. you sell copies or charge admission, etc.) then you’d have to rely on relatively minimal exceptions. Fair use would probably not suffice.

    That you forgot both what I propose (when discussing how things would work under what I propose) and forgot about core parts of copyright law that would continue to exist, pretty much makes your next few paragraphs useless to everyone. Feel free to try again.

    And publsihers – you and I – have to eat.

    And they always do. Copyright is meant to get the publishers — who always eat — to share with authors. It doesn’t keep the publishers alive, however. They’d do okay no matter what, because there is always a market for works.

    I will also point out that Jefferson, one of my most favored heroes, was also quite an idealist in his “youth” and not only accepted the potential to benefit from these “monopolies” but throughout his life defended them ever more vigorously.

    Which is why he said that patents were an embarassment to the public in 1813, toward the end of his life? Does time flow backward for you too?

    your arguments to … make copyright only available to what would essentially constitute popular speech

    No, I think that anyone who writes a copyrightable work ought to be able to get a copyright if they want it and will undertake the token effort to get one (e.g. fill out a simple form, send in a small check, deposit a couple of copies; stuff people routinely did for many many years). I think that in practice if your works aren’t popular with someone you won’t bother, but that’s only because you have no audience and thus no one to give you money and no way to recoup your expenses. No copyright law can ever possibly solve that problem.

    DRM is a mechanism which seeks to lower those administrative costs

    No.

    First and most importantly, you were talking copyright licensure. I understand that you cannot support your original argument, but it’s bad form for you to pretend that we were talking about something else. If you have to resort to lying in order to feel good about yourself, you should consider the root of your problems. Second, DRM raises transactional costs because now lawful uses cannot be engaged in as a practical matter, resulting in users having to negotiate in order to do things that they are already allowed to do by law. Third, DRM raises costs further because DRM systems must be developed and widely implemented. Look at Macrovision; they have a federal monopoly, and have responded by continually jacking up their licensing costs at the expense of the movie industry, because they don’t have to worry about competition. Fourth, you say that there is a social stigma against infringement. This is patently false. DRM is targeted not at large scale infringers, such as your more serious sort of pirates, who have the resources to avoid or ignore it altogether. No, it is aimed at causual infringers; ordinary people. Virtually none of these people feel even the slightest bit bad about what they are doing. There is no stigma against them whatsoever. The parallel to the Prohibition era, when people might not like gangsters, but didn’t have the least problem with having some drinks at the speakeasy, is quite clear. Heck, in the town I grew up in, back when it was dry, the local bootlegger was the police department. If you wanted liquor, you placed an order with a cop, and a police car would deliver it to your home. I suggest that you ask some people outside of the asylum you live in as to whether there is a stigma. I predict that you’ll find I am correct. (Or that you’ll hallucinate, as usual)

    So now you resort to calling me a liar?

    No, I accurately call you a liar, because I warned you that I would not tolerate even a suggestion by you that I am opposed to liberty, particularly freedom of speech. You ignored my warning, and I responded as I said I would.

    Increasing protection does not simply mean extending terms. It can also mean increasing scope.

    True, though I’m more interested in decreasing protection in both term length and scope, so that copyright can be made more perfect. Right now it’s a straightjacket, a garment I am sure you are familiar with.

    Actually, in regard to patents, jefferson even defended his responsibility to pay patent licenses to an inventor for making use of certain technologies on his own plantation. An invention for which he, in fact, could find examples of “prior art” dating back as far as ancient Egypt.

    Actually, no. You’ve got it wrong as usual.

    From what I can gather about the Evans affair — a legal historian in the patent field would surely know more about it — what happened was that Evans got a patent, but that the patent was invalidated by the courts because the invention was not novel; he had invented nothing. In the time between the grant of the patent and the invalidation of the patent (which happened after Jefferson’s letter), Jefferson was happy to pay Evans the fee he requested. He did not do so because he felt he was obligated to, having been suspicious of the invention. Rather he did so, in his own words, “from a wish to encourage even the useful revival of ancient inventions.”

    That is, Jefferson knew he had no responsibility. He was being charitable.

    It’s probably an interesting bit of history in its own right, but I’ve never been able to get nearly as interested in patents as I am in copyrights. I know many patent lawyers who feel the same way, mutis mutandis

    If a child will struggle in a factory for a dime a day to feed her starving family, it would be criminally wasteful to give her a dollar…

    Yes. I have no problems with setting up a minimum wage, of course, or from having child labor laws. But ultimately, a minimum wage law is just that — it does not force employers to pay a cent more than they absolutely have to. The employer will pay the employee as little as possible, and the employees will try to get as much as possible (maybe by getting a better job, striking, etc.). Both parties are self-interested, and interestingly, both might be able to come to a mutually beneficial solution without abandoning their singular goal of maximizing their own benefit.

    Worse, basing copyright on these cruel notions would make us all party to fascism.

    Tsk tsk. First, you are again impugning my adamant dedication to liberty, and you are thus a Liar. Second, capitalism and fascism are not the same thing. I suspect that you’re a communist, given how frequently you invoke Marxist rhetoric (FYI, it failed miserably), but there are important distinctions to be made.

    ACS–
    You are still thinking that a single work is a market within itself. The correct view is that works are in competition with other works.

    Both are correct, to a degree. Yes, two disaster movies about the same general kind of disaster, will tend to compete and this will be beneficial to the public. However, competition within a single work is also beneficial in that it reduces the cost of copies of that work. I can go to a hundred different publishers for a copy of Shakespeare; this is inarguably better than only being able to go to Mister Shakespeare himself.

    Monopolies in either subject matter (e.g. only one volcano movie can be made for the next umpty years) or copies (e.g. only one company can publish copies of ‘Disaster at Volcano Mountain’ for the next umpty years) tend to harm the public in that they are no longer getting the benefits of a free market.

    As I said, this trade may be acceptable. Look at the logic behind granting regional monopolies to cable TV companies. But it’s not founded on the idea that the monopolies will aid in competition.

  123. poptones says:
    March 2, 2006 at 12:42 pm

    Ya know what, Josh? I think at this point it will be glaringly obvious to anyone with the patience to filter through all this crap just exactly how terrible your “idea” really is. Moreover, I think it would be obvious to anyone reading your silly ideas that you aren’t interested in “freedom” so much as you are in having a free ride for yourself – including the establishment of a legal system that would further lend you some job security…. which isn’t surprising because, from what I have seen here of your legalistic disabilities you are sure gonna need somethin’ to help you along.

    You’re just not worth any more effort. You’re boring and obviously either inexperienced or incapable, and I feel rather confident there’s no one here but the three of us. Well, no more. Feel free to rattle your chain as long as you like, I’m off to more constructive wastes of time.

  124. nate says:
    March 2, 2006 at 6:45 pm

    > You’re boring and obviously either inexperienced or incapable,
    > and I feel rather confident there’s no one here but the three of us.

    No, there are others. And as (mostly) an observer, that wasn’t the conclusion I reached. I wasn’t sure about implementation details, but I agreed with almost all of Josh’s arguments. I’d prefer a more civil discussion, but I found some pretty good ideas on all sides.

    –nate

    (I’d appreciate if Josh and Jim would drop me an email at [email protected], as I’d love to discuss a few other matters)

  125. ACS says:
    March 2, 2006 at 6:46 pm

    Both are correct, to a degree. Yes, two disaster movies about the same general kind of disaster, will tend to compete and this will be beneficial to the public. However, competition within a single work is also beneficial in that it reduces the cost of copies of that work. I can go to a hundred different publishers for a copy of Shakespeare; this is inarguably better than only being able to go to Mister Shakespeare himself.

    On that logic Sony could make millions of copies of any artists works without paying the artists. Is that beneficial to the artists as a group?

    My response is that you are correct in assuming the price of CD’s would come down – but would Mariah Carey really sing so well if she had to have a day job. Actually scratch that last comment (Mariah Carey does not sing well). But apply that same principle to garage bands.

    Again I do not think you have come to grips with the true policy behind copyright.

    (I guess in the alternative that you are advocating a compulsory licence system whereby something would return to the artists under the copyright legislation, but that is at least one step from what you appear to be saying.)

  126. Jim Powers says:
    March 2, 2006 at 9:14 pm

    Josh,

    Your patience with poptones is nothing less than heroic, and I applaud you. Where I just lose it with this guy is that he is being deliberately and pointlessly disingenuous and contrary. And this is not because he and I disagree about the points we discussed, but because the method, tactics, and content of his discussion points were simply calculated to achieve only one result: provoke you, me, or someone to simply respond, and essentially nothing else. I really and truly feel that this whole thread has not been a “good faith” endeavor on his part. I suspect that this has been for his own entertainment. He overtly contradicts himself, and if you point it out he says it only makes his “argument” stronger and yours moot. It’s like living through the Monty Python skit where a guy goes in to have an argument and all he’s given is a person who will say the opposite of what he says.

    Examples:

    Claim: Total control DRM is a technically achievable.

    Initially he claims this is true. When pressed on the issue he weakly acquiesces only to come back and claim it true again.

    Claim: Josh Stratton is anti-copyright

    There is no evidence in this thread that you ever made statements even remotely supporting this claim. You have provided a well-rounded treatment regarding various thinking around copyright, but you have never once said that you were anti-copyright. In fact you have made it very clear that you are in favor of a healthy copyright system. You have stated that you essentially feel that copyright law has gotten unhealthy and is in need of some fixing. Practically speaking for poptones, the mere whiff of the idea that copyright law in the US needs to be looked at, and, in particular, looked at because there ~may~ be an imbalance that is not in the public’s interest (i.e. that the balance needs to be moved back a bit from copyright holders) is enough to trigger a knee-jerk reaction on poptones part causing him to assume that you are anti-copyright. This belief seems obviously untrue. But he has continued in either directly or indirectly making this claim. The strength of his claims have gotten incrementally weaker each time because he was losing degrees of freedom where he could challenge you on this point, but if he was sincere about discussing issues related to copyright it should not have taken as long as it did to realize that, in fact, your thinking about copyright is consistent with at least one mainstream view on the subject. I guess that it would have been easier for him to simply prove that you were anti-copyright therefore making it possible to dismiss your ideas altogether. This is another example where poptones’ was being disingenuous because rather than thoughtfully challenge your ideas to see if they have merit, he began down a path to discredit you.

    Claim: Josh Stratton is anti-DRM

    Again, you have made it repeatedly clear that you are not anti-DRM, per se, but that you feel that DRM and copyright are in some important way incompatible. You have proposed a way to address this issue that in no way prohibits a person from choosing to use DRM incorporated into a means of sharing creative work, only that it is not in the public’s best interest that this way to share work be used as a replacement of copyright, therefore, divorce them: choose: copyright or DRM, but not both. The only thing your proposal does is make DRM less attractive as a publication vehicle, but you are still free to use it. The government is not obligated to effectively “endorse”, by providing specific legal backing (as in the case of the DMCA), any particular way of sharing creative works. Now, our government has done exactly this with the DMCA: it has provided protections for sharing creative works that uses DRM that transcends copyright, both in term and effect. Anybody can see this, and there is no way poptones doesn’t. Again, it is disingenuous on poptones’ part to argue otherwise: it’s like some sort of dirty little secret that if he doesn’t say it nobody will notice. It is now apparent that poptones has done this because it is part of a larger agenda (I think, but more on this later) he has in mind to, essentially, save the world and bring economic justice to the masses. Now, his goals are laudable, but he cannot claim ignorance that his plan relies on a law that provides ways to protect shared works that supersedes copyright. The only way to do this is to, again, be disingenuous.

    There are other claims that could be presented, but it is getting late, and I’m getting tired, so I’ll conclude:

    Despite everything that has been said, despite your (Josh Stratton) exhaustive point-by-point treatment of the matters so far discussed poptones’ last characterization of your idea is “terrible” and “silly”. Now, they may be infeasible, or have some other unforeseen side-effect that is undesirable, but words like “terrible” and “silly” are truly unjustified.

    In the end I think that you and I were simply the victims of flame bating, not a good-faith effort on his part to “actually” discuss the issues that emerged in this thread. In the end I actually don’t know what poptones stands for or what his beliefs are. I really and truly think that he was using us to get off, to have a good time, and nothing more. In particular, when he expanded his attack methods to include all that stupid shit about Jefferson (hey, maybe it’s about time we get the pissing match going where we start quoting our respective experts. Or maybe see who thinks they know more or better about some famous historic figure like Jefferson, or maybe Franklin) it just seem to me that this discussion wasn’t real. To quote the Monty Python skit I referred to earlier: “This is not an argument.”

  127. Josh Stratton says:
    March 3, 2006 at 4:27 am

    ACS–
    On that logic Sony could make millions of copies of any artists works without paying the artists. Is that beneficial to the artists as a group?

    Whoa there. I think we’ve lost track of why we started our little side-track about copyright and competition. Some ways back, Jim and I pointed out that DRM allows existing, well-funded, publishers and electronics manufacturers to sufficiently lock down means of distribution, which among other things, allows them to act in an anticompetitive fashion against independents that don’t want to be co-opted into the DRM system that’s been developed. (e.g. a garage band that self-publishes might not be able to afford to release copies that comply with a DRM system that locks out non-DRMed works; to overcome this obstacle they’d have to get more money from somewhere, or stop self-publishing and let bigger publishers take a cut) I also pointed out that copyright is anticompetitive as well, but less so, and that while that wasn’t good, it could be acceptable if the benefits of copyright were sufficient. (c.f. auto safety and emissions standards, which likely prevent extremely small car companies from being viable, but are probably worth it anyway)

    So all I’m saying is that 1) capitalism isn’t a cure-all for issues in the copyright or DRM worlds, because it isn’t allowed to freely function there, and 2) that we should therefore be quite skeptical of these systems, and make sure that they demonstrate enough value to the public to compensate for the ills they bring with them.

    I did not say that we ought to abolish copyright (it’s an option, but I don’t think it’s appropriate now or in the foreseeable future) or set up an across-the-board compulsory license system, or anything like that. I think that even though copyright is not very capitalistic, it’s still a good idea if carefully implemented.

    On the other hand, I do think that we ought to deprive DRM of exceptions against antitrust regulation, as well as other forms of legal support (such as anticircumvention laws, or copyrights for the works so encumbered) because it is much more anticompetitive than copyright is, and is not really compatable with the policies that drive copyright. I stop short of saying we should abolish DRM — mainly for First Amendment reasons; it’s not as though I would be unhappy to see DRM die — but I do not think we should prop it up in any way. And, as I have said earlier, I think that we should offer more attractive alternatives so that while authors have the right to use DRM as they like, they don’t want to because they’re better off without it.

    Jim–
    Again, you have made it repeatedly clear that you are not anti-DRM, per se, but that you feel that DRM and copyright are in some important way incompatible.

    To clarify, I am anti-DRM, but I do not feel that it is constitutional to ban DRM. I view DRM as being roughly on par with Illinois Nazis; I hate them, but I tolerate them because I believe in free speech (which is inclusive of the manner of speech, here, DRMed speech).

    But while I will never advocate for banning DRM, I do think that it is incompatable with copyright, and we should attempt to make copyright so damn appealing to artists in comparison with DRM that no one will bother using DRM and it will be abandoned. My method for doing this is to make circumvention of DRM lawful, to encourage circumvention of DRM, and to make circumvention of DRM carry no legal consequences for the circumventor mainly by not allowing DRMed works to be copyrighted. (Again, publication of DRMed works would be protected by the First Amendment)

  128. Jim Powers says:
    March 3, 2006 at 4:41 am

    Josh,

    Clarification understood.

  129. Michael Locker MD says:
    March 3, 2006 at 6:23 pm

    Interesting info

    Michael Locker MD

  130. poptones says:
    March 3, 2006 at 7:55 pm

    Again I do not think you have come to grips with the true policy behind copyright.

    I don’t think he can, ACS. Honestly, it’s been pointed out repeatedly how flawed the understanding of copyright seems to be not just of josh and jim, but even perhaps a majority of “commons-ists” as tbm calls us (a moniker I eagerly embrace).

    When Sony sets the price of Alicia Keyes latest CD it’s not just fixed by how much they can get because they have a “monopoly” on AK CDs; you can still hear AK on the radio, or download her from the internet, or watch her on tv, or just not listen at all. The competition is with themselves and every other music publisher – to convince the customer it’s worth their money to invest in AK as opposed to Pink or Mariah or Britney. Even in the unattainable realm of “perfect DRM” the same competition would exist and teired pricing would be inevitable – you preorder AK CDS or high bandwidth downloads and get a cut rate, or you impulse buy off the shelf so long as she continues to sell at a higher price, or as the demand drops you buy the music at cut rate. You can buy high bandwidth “perfect” copies or you can buy a low bandwidth imperfect rip off itunes for a buck (or, in many cases, even less – if Jobs would pull his head out of his ass and realize that teired pricing is how you encourage people to buy more shit rather than simply how you “extort” higher prices for in demand works).

    It is not the role of the courts to tell copyright holders the best way for them to exploit their copyrights…

  131. chy says:
    March 3, 2006 at 8:18 pm

    Molly Van Houweling explores voluntary manipulation of intellectual property rights as a tool for cultural environmentalism. Susan Crawford extends Boyle’s analysis to the age of networks. Rebecca Tushnet, looks at the ways in which the law’s impulse to generalize complicates the project of cultural environmentalism, and Madhavi Sunder looks at how the metaphor affects traditional knowledge.

  132. Jim Powers says:
    March 3, 2006 at 8:31 pm

    Josh,

    Some comments and questions

    I went back and reread much of this thread again, trying to understand it all and I came across a few items you might (or might not) want to sound off on:

    – Now, every computer geek worth their salt is opposed to the anti-circumvention clause in the DMCA. I have also inferred that there are other portions of the DMCA that are also undesirable. You certainly seem to have strong opinions about the DMCA, care to elaborate?

    – Copyright term length: You threw out 5 years, in passing, for software, your thoughts? Not to be difficult, but if you are thinking about different copyright terms for different kinds of creative works are you not going to run into trouble? After all, there are many (probably most) software developers, and I count myself among them, that view software, certainly source code, as being indistinguishable from the greater notion of speech. Also, I would say that a majority of programmers would put software squarely in the “art” category. Thoughts on this?

  133. poptones says:
    March 3, 2006 at 8:56 pm

    I would like to know from you, jim, where you stand on open source software? Do you think every software publisher should be required to release all their source code to be freely available for all of us to use and repurpose as we see fit? To redistribute as we wish? Or to deny all proprietary software the protection of copyright in order to “encourage” all publishers to release their code under the GPL?

  134. Josh Stratton says:
    March 4, 2006 at 8:32 am

    Jim–
    You certainly seem to have strong opinions about the DMCA, care to elaborate?

    I make an effort to be more interested in looking at Title 17 and other relevant provisions in considering reforms, rather than particular bills. The DMCA is a good example of why, since it covers several different, unrelated subjects. (C.f. the CDA, which was really bad, but which had section 230, which is quite good) It’s also difficult to point to a bill and immediately, easily show why it might be bad, since bills tend to read like diffs, and it’s easier to compare before and after versions of the code sections. Still, if you’re curious, I’d say that I’m most strongly against titles I and V of the DMCA (i.e. anticircumvention et al, and boat hulls, respectively). I think that title II (safe harbors for ISPs) could be improved but is at heart an okay idea. I think that title III (expanding the 117 exception to computer maintenance and repair) is good, but that a broader 117 exception is called for anyway. And title IV (miscellaneous provisions) is a mixed bag, as might be expected.

    If you are thinking about different copyright terms for different kinds of creative works are you not going to run into trouble?

    Technically, I’m thinking that there should be very short terms across the board, with numerous renewals available, so that we can better balance granularity (copyrights should be as short as possible; if author A stops caring after a year, and author B will care for the longest possible time, why not let author A drop out early?) with convenience for authors (obviously you shouldn’t need to renew daily, or probably even yearly, but decades seem long). So in this case, I’m suggesting terms be 5 years, renewable several times, but not renewable for works that are materially software works.

    While I think we’re all aware that software is a description that can be fuzzy around the edges, we have working definitions of it now, in 101, and we’ll need them, so long as we have something like a 117 exception (which makes it non-infringing for owners of a copy of software to run or backup that software, etc.). Since ultimately it would be up to human beings — applicants, Copyright Office officials, and judges and juries — to make these decisions, I think that it’s not going to be impossible to manage. Though it might be difficult to explicitly define why a book about programming that consisted largely of example code is not the same as a computer program that included extensive amounts of art and text, I think that we can do so, so long as people are involved.

    I think that software is a very unusual class of works, and demands special treatment. It ages rapidly, in that unless it enters the public domain sooner than other kinds of works, it will be of far less value, simply because no one is likely to still have, or want to use, the old hardware needed to run it. Does the public benefit from having MS-DOS enter the public domain in circa 2075? If not, how is the public interest really being served?

    Also, given that binaries are difficult to understand the workings of, and thus to effectively modify (creation of derivatives and free use of works is also part of the public interest, as mentioned before), I think that software is a sort of work for which what I call supplemental deposit would be required. Basically, the idea is that works should meaningfully enter the public domain, rather than entering it technically, but not in spririt. Furthermore, I’m borrowing an idea from patent law, which requires disclosure of inventions, even though this might force inventors to decide between whether they want the kind of protection offered by patents, or of trade secrets, each of which has its advantages and disadvantages. You can’t patent and trade secret the same thing, though. Likewise, if copyright protection is sought, I’m not interested in preserving trade secrets relating to the work in question. In the case of software, supplemental deposit requirements (which would need to be set by the Copyright Office) would most likely be a requirement that when a developer files for a copyright on his software, that he also deposits a full copy of the source code used, commented sufficiently so that a PHOSITA-equivalent could readily modify the software and understand its workings. The source would be on file at the Library of Congress, and anyone could view it, but it would not be open source. You could look at it, and learn from it, but you could not freely copy it, or make changes, etc. during the copyright term, unless there happened to be some applicable exception, same as for any other copyrighted work. Basically, visible source, rather than open source, which is quite similar to patent disclosures.

    It’s possible that supplemental deposit would be useful for other kinds of works (a deposit of the individual tracks that were mixed together to make a song; or the elements edited together to make a movie) but I’m taking a wait-and-see attitude there. It certainly is not meant to require authors to include earlier revisions of their works, manuscripts, etc. Rather, the idea is to make sure that when a work enters the public domain, that that means something, not just for those that want to reproduce it, but also for those that want to modify it. If the normal form in which a work is distributed is not very useful in achieving this goal, the extra deposit supplements it so that it becomes so.

    Trade secrets might not be possible to maintain along with this, but thems the breaks. That’s how things work in the patent field already. It’s not a big deal.

    Poptones–
    Do you think every software publisher should be required to release all their source code to be freely available for all of us to use and repurpose as we see fit? To redistribute as we wish? Or to deny all proprietary software the protection of copyright in order to “encourage” all publishers to release their code under the GPL?

    Of course, I cannot answer for Jim, but in my opinion, I think that software publishers who copyright their software should be required to reveal the source code for the copyrighted software, which would then be no more free for others to use than the compiled software itself, for the length of the copyright. Furthermore, it’s fine with me if the only copies viewable are at the Library of Congress, just as is the case with other deposited copies (Though once the term runs out, people could make their own copies, using the LoC copies as a master). I do not think that a compulsory GPL for software is a good idea, and I don’t support that idea. The GPL is fine for those that want to use it, but it should not be forced on people (save in that it’s basically viral anyway).

    It is not the role of the courts to tell copyright holders the best way for them to exploit their copyrights…

    And who’s been talking about the courts? I for one am interested in legislative reform. And it is absolutely the role of Congress to consider the best way for copyrights to be implemented, which includes some thought as to how they should be exploited, and how we can shape the system to encourage the right kinds of exploitation.

  135. Jim Powers says:
    March 4, 2006 at 6:25 pm

    I would like to know from you, jim, where you stand on open source software? Do you think every software publisher should be required to release all their source code to be freely available for all of us to use and repurpose as we see fit? To redistribute as we wish? Or to deny all proprietary software the protection of copyright in order to “encourage” all publishers to release their code under the GPL?

    Interesting questions. Now, considering the history of poptones’ posts I full expect that I’m being baited. I will answer honestly, but rolling-around poptones’ questions in my head looking for a “back door” to attack Josh’s ideas to date, I’ve come to the conclusion that poptones will get what he seeks: I am about to spew-forth in my own crack-pot fashion potential challenges to Josh’s ideas. Some of these challenges may be easily addressed by Josh, others may not.

    This said, poptones’ questions are good ones, and I really wish we had gotten to questions like this a long time ago, because I think we would have had a substantially more productive discussion where “fascist” was not a substitute for “I have a head full of ideas on this subject right now that I can’t put together into a cohesive set of statements, but believe me, there are things that you are not considering that may seriously impact the applicability of your argument. Such as:…”

    So, on with the show…

    I would like to know from you, jim, where you stand on open source software? Firstly, we have to agree that “open source” software is not a monolithic thing and that there are different camps of thinking. Here I’ll give a quick (and not entirely accurate) taxonomy:

    A) The “free” with “share alike” (a.k.a. “copyleft”): In this camp are things like the GPL and the CC “Share Alike” license. I like this one the most because it has the liberty property I look for (my right to access and use the software and its source is “guaranteed” [guaranteed in this case means both that I am accessing the software in a legal environment where the terms of these licenses can be enforced and I hold up my end of the bargain and comply with the terms of the license]) and secondly that means that requires that people who modify the software and distribute it are required to share their source code, which is generally done willingly (there are some exceptions of note though). So I like both the terms and effect: the software is a knowledge accumulator. As far as what “freedom” is in this case I generally subscribe to the definition given by GNU:

    [source: http://www.gnu.org/philosophy/free-sw.html ]
    * The freedom to run the program, for any purpose (freedom 0).
    * The freedom to study how the program works, and adapt it to your needs (freedom 1). Access to the source code is a precondition for this.
    * The freedom to redistribute copies so you can help your neighbor (freedom 2).
    * The freedom to improve the program, and release your improvements to the public, so that the whole community benefits (freedom 3). Access to the source code is a precondition for this.

    Some people don’t like this license because it means that you can’t take and modify software protected with these kinds of licenses and keep those modifications “secret” (these kinds of licenses are “viral”). RMS would probably say that these folks want to retain the freedom to to take away somebody else’s freedom. The GPL and licenses like it seek to actually emancipate the software itself.

    B) “Free” without “share alike” (a.k.a. non-copyleft): Examples of this are the MIT license (Expat License). You can use and modify the software but you are not required to share the original source or and modifications you make should you choose to distribute the software. I like this kind of license a lot less, but a lot of people do like this kind of license. The main difference between A and B is that A actually tries to emancipate the software itself, while B simply gives access and use to people, so the software can be re-enslaved (if there is such a word 😉 ) .

    C) “Mere open-source” or “non-free” licenses, as an example “Sun Community Source License”. These licenses accompany source code but do not allow you to do anything more than study it. In some cases you are allowed to modify the source but you are required to submit those modifications back to the author only. This kind of license may be useful for security experts and organizations that need to comply with some sort of code audit, but has limited practical value otherwise.

    D) Unlicensed (public domain) code: I’m sure that there are practical differences between this kind of license and B, but the subtleties escape me. As far as I can see the only issue here is nobody claims a copyright on the code. (I guess it goes further and says nobody can claim a copyright, but again, I would defer to those who better understand these subtleties).

    So after babbleing on my preferences are (in order) A, B, D, C. C is practically indistinguishable from “closed source” licenses from a use point of view so that kind of license doesn’t really appeal to to me.

    So, now, to your questions:

    Do you think every software publisher should be required to release all their source code to be freely available for all of us to use and repurpose as we see fit? To redistribute as we wish? I would like software publishers to do this. I think that in the end there would be a great public benefit as a result, but I don’t think that there is a legal construct to make this happen. Since I would argue that there is a very compelling public benefit from this I would not be against the idea of creating some sort of legal benefit for software developers to publish their software this way. Clearly, this parallels Josh’s arguments regarding copyright.

    Or to deny all proprietary software the protection of copyright in order to “encourage” all publishers to release their code under the GPL? I must admit, a very clever question, and I think I see where poptones is going with it.

    Most software is released under a license of some kind, in some cases these licenses are “click-through” licenses. These “click-through” licenses are arguably indistinguishable from DRM: agree you can run, disagree you can’t. So, um, does your software (binary) become public domain?

    There are larger issues that overlay issues related to these questions, and I believe, from Josh’s last response he is aware that software and copyright are not comfortable bed-fellows. In fact, there was a recent case ( http://patentlaw.typepad.com/patent/2006/02/court_upholds_d.html ) where a case was brought forth arguing that copyright shouldn’t be applied to software at all. The case was dismissed, but it seems like an appeal is to follow. The fact is, and I’m positive that poptones is aware of this, that software IS math. I know that there are a lot of people who insist that this is not true, all of those people are trying to sell you something. But anybody who has been immersed in software, and has even a reasonable math background (especially discrete math and automata), knows this. It is not an issue for debate. Layer on whatever you want: speech or device, you’re not going to escape this fact. Now, most people think that math is stuff like arithmetic, trigonometry, calculus, etc. powerful tools for computation, but mathematicians and computer scientists view this subject quite differently: mathematics is an expressive art form, and that “language/speech” is truly, really truly, indistinguishable from mathematics and visa-versa. Now, we have exemptions on copyrighting formula, yet, there seems to be some compulsion to believe that software falls within the realm of copyright.

    Now, Josh, you are free to disagree with the nonsense I just came out with, and poptones, I fully expect that you were expecting me to say something like this, but despite the fact that I’m being used as a tool to undermine Josh’s earlier proposals, I cannot deny the fact that this nonsense is really, mean REALLY hard to fit into something like the copyright mold, in fact your are going to find it impossible.

    Then there is the question of public benefit. From the beginning of human history to the time of Newton and Leibniz we built great structures, produced amazing art and developed a sustainable civilization. But from the time of Newton to now WE (the world kind of we) have had a disproportionally greater rate of scientific and engineering progress as compared to the history of the world prior to Newton all because of mathematical tools like the calculus (Leibniz played a huge role in getting the calculus out to the world because he published his version before Newton who tried to hoard it). So, I would argue that there is an immense over-arching public benefit to allow, support and otherwise enable the free (as in liberty) sharing of the mathematical works we call software.

    So endith my babble. I admit complete craziness here, but it is a craziness that is hard to deny.

  136. Jim Powers says:
    March 4, 2006 at 6:28 pm

    Crap! Sorry about the double-post. Something went very weird.

  137. Josh Stratton says:
    March 4, 2006 at 8:07 pm

    Jim–
    D) Unlicensed (public domain) code: I’m sure that there are practical differences between this kind of license and B, but the subtleties escape me. As far as I can see the only issue here is nobody claims a copyright on the code.

    Well, only the author of a work, that is the person from whom a work originates, may hold the initial copyright on a work. If a work is a derivative work, pre-existing material cannot be copyrighted under the derivative copyright (e.g. if Alice writes a GPLed program, and Bob makes a modification to the program, Bob’s copyright only covers the material he contributed, not the material that came from Alice). And if a work is in the public domain, there is no copyright at all, and thus nothing to license. The same rule re: derivatives still applies, so that if Alice’s program was in the public domain, and Bob modified it, only Bob’s modifications are copyrighted. Alice’s material would still be in the public domain, free for all to use, even if they obtained it by extracting it from Bob’s modified copy.

    Most software is released under a license of some kind, in some cases these licenses are “click-through” licenses. These “click-through” licenses are arguably indistinguishable from DRM: agree you can run, disagree you can’t. So, um, does your software (binary) become public domain?

    Well, I think it’s easier to just tweak contract and sales law to ensure that adhesive contracts of the EULA variety are generally unenforceable, as a reaction to how badly they are abused. Other sorts of adhesive contracts, such as the GPL, or perhaps site licenses, we would likely want to still permit. And licenses that were actually negotiated should probably still be kept as well. This is on my to-do list, but I don’t think that we should treat it the same as DRM. And I would note that a relatively minor tweak to the UCC is probably sufficient to accomplish this.

    Re: your general point on the copyrightability of software, I don’t have a problem with software copyrights. While software might arguably tread closer to the idea side of the dichotomy than most works, I think that software works are still generally expressions, and that where the line might be crossed (e.g. if there’s really only one way to write the most efficient sort routine) the merger rule can be applied. Basically, I don’t think that a program is materially different, for purposes of this argument, from a math textbook. While they might be full of uncopyrightable ideas, the specific way that they are expressed, as well as the selection and arrangement of the elements of the work (to draw from compilations) are put together in a creative way that is not really inevitable if we were just looking at the small picture.

    As it happens, I’m also not against software patents, except for on practical grounds. The idea of them is fine, but I think that, like copyrights, patents are meant to fulfill certain public interests, and are basically utilitarian. At the current time, there are massive incentives to invent, publish, and market software inventions (admittedly, some of the publications — such as implementations of the invention — might not be as well disclosed as is the case in a patent, but the basic idea, e.g. one-click shopping, is often what’s actually of interest.), and patents probably don’t encourage this too much. Likewise, patents impair the ability of others to market and use the invention (bringing in competition, efficiency, etc.), and with software being such a fast-growing field, I think that this is actually impeding progress in the art, rather than promoting it. In time, as the software field slows down a bit, patents might do more good than harm, but I don’t think we’re there just yet. Patents are not really my thing, of course, but I have discussed this with some friends of mine who are patent lawyers, and they’ve agreed.

    I would remind you, Jim, that a particular bit of software can be both patented (in how it basically works) and copyrighted (in a specific implementation of how it works) and that if you want something like a compulsory license, or even shorter terms, that you may need to consider the patent question. Otherwise you may be stuck in the situation of being free to study how a piece of software works in the invention and expression senses, and able to modify it, etc. without infringing on copyright, but not being able to modify it or even independently implement it without infringing on a patent.

  138. poptones says:
    March 4, 2006 at 8:27 pm

    So how can you agree that math is an expressive art form, that mathematics is, in fact, language but it is not applicable to copyright?

    If Math formulae are not copyrightable then how are poems copyrightable?

    BTW, by the time DOS becomes PD it will be moot. This is not conjecture, it’s simply based on the fact OpenDOS already made DOS essentially obsolete. Who wants DOS when you can have a DOS with built in networking?

    Another example of strict copyright protection and secret source code providing incentive to create something better and, in so doing, further the progress of the sciences and useful arts…

    The number of people “off the grid” outnumber all the developers who have contributed to Microsoft’s evolution by at least four orders of magnitude. If you want progress, provide them tools, knowledge, and generous incentive to create rather than merely replicate.

  139. Jim Powers says:
    March 4, 2006 at 10:22 pm

    So how can you agree that math is an expressive art form, that mathematics is, in fact, language but it is not applicable to copyright?

    I don’t know who this was meant for, but I’ll add my crack-pottery anyway (I’m assuming you meant this for Josh): This is an interesting question, to say the least. When I mush up all this stuff: copyrights, ownership, patents in the sorry-excuse of a brain I have I come to the following conclusion:

    In the physical world, where physical laws apply and generally we can use our senses to interact with things laws like copyright (ok, I’m treading on thin ice with this, I’ll address this more later), ownership, and patents ride on an unstable equilibrium (simple model: think trying to stay on top of a hill when gravity wants to pull you down the slippery slope of logic), where the top of this hill is relatively broad and it doesn’t take too much work to prop-up laws relating to these various kinds of ownership methods. Because, for historical reasons, these ownership methods have been deemed practical and, generally speaking, in everyone’s best interest this unstable equilibrium has been maintained.

    In the non-physical world basically all hell breaks loose (IMHO). What was a broad hilltop for the physical world has become a sharp point with the sides of the hill falling away at a steep angle.

    With this in mind the formula exemption from copyright would prompt me to tip all of software off the pinpoint at the top of the hill and let it all slide down away from the various kinds of ownership systems: copyright and patents. Why? because I think that copyrights and patents cause an unhealthy cognitive dissonance. People are always going to question: why not copyright formula, but copyright program code (also formula)? Why allow software patents, but not literary patents (which seems on the way)? In the end it seems that either everything is copyrightable and patentable or nothing is. The fact that there are powerful economic forces at work I tend to the the “everything is copyrightable/patentable” camp eventually prevailing, this depresses me. If I were forced to choose one or the other (only) I’d say ditch the whole thing (patents and copyrights). Since it is so doubtful that I will be alive when/if this question needs to be answered by the populous at large, my choice in the matter now is of little consequence: I am simply going to have to live the the cognitive dissonance that, at least copyright, creates. So, given this, I want to minimize the amount of cognitive dissonance copyright creates. Since I am inclined to dump the whole thing then anything that creates a space within the law that emulates a portion of life without copyright is the direction I would like to see the law move. This leads directly to my initial desires that I would like to see happen to copyright (stated elsewhere in this thread).

    With regard to mathematics, language, and code, if you haven’t, you should really check out the DeCSS gallery: http://www.cs.cmu.edu/~dst/DeCSS/Gallery/ You will find DeCSS represented as traditional “code”, in “pure” math form, in haiku, and as prime numbers. My real feeling is that the non physical world is way too mailable even for the greatest of legal geniuses. Here, try this one on for size: Alice and Bob contrive a situation to effectively thwart Josh’s DRM rule. Alice creates a work X and Bob a program Y. X is DRM encumbered, and Y is a program that will remove the DRM of X. Bob gets a patent on Y, a pretty damned broad one at that, and also copyrights the program Y. Bob releases the program with a license that prohibits you from using it on X. Now what? The courts have to decide. Maybe they will get it “right”, then again, maybe not. I could probably spend all night coming up with cases for any situation you might want to throw my way, but I would choose the simple method to get through this Gordian knot by stopping the situation from happening in the first place.

    In the end, when it comes to the legal regulation of the non-physical world it always seems to VERY quickly reductio ad absurdum in basically every case.

    So short version:

    I simply have to live with the formula exception, it is a legal axiom.

    BTW, by the time DOS becomes PD it will be moot. This is not conjecture, it’s simply based on the fact OpenDOS already made DOS essentially obsolete. Who wants DOS when you can have a DOS with built in networking?

    True, and thanks so much to the clever hackers out there that made this happen. But I think that what Josh was getting after is that OpenDOS, or projects like it do not have to always come into existence, if, say MS lost interest in renewing the MS-DOS license after the first 5 year term was up. Now, granted this would not have happened in the case of MS-DOS, but it could have happened in a lot of other cases. But I’m not sure if this is really useful because of patent licensing. Take for example BeOS. When Be was about to go belly up there was a great clamor for Be to open source BeOS. Be declined because of licensed code in BeOS. So a piece of code falling out of copyright does not mean you can actually do anything with it. This is a unique situation for software copyrighted works (for now, literary patents are on the way and then the sky will fall).

    Another example of strict copyright protection and secret source code providing incentive to create something better and, in so doing, further the progress of the sciences and useful arts…

    This is the dream, but the reality is vastly different. A good friend of mine has a college professor who once said: “In other fields today’s generation stands on the shoulders of the giants of the past. In software we stand on the toes.” Most engineering fields produce new results via incremental refinement. Total, off the wall newness in software is stupendously rare. I think that it is not in the public’s best interest to encumber the incremental refinement process of software with copyrights and potentially very expensive patent licenses. The “quantum leaps” in software will come from time to time, but in the mean time we can do well plodding along. IMHO.

    The number of people “off the grid” outnumber all the developers who have contributed to Microsoft’s evolution by at least four orders of magnitude. If you want progress, provide them tools, knowledge, and generous incentive to create rather than merely replicate.

    I don’t know if your order of magnitude count is correct, but that is neither here nor there, your point about the size of the pool of humans who participate in the “electronic” world is well taken: it is a small proportion of the total world population.

    As far as “creation” vs. “replication” I thinks that we actually should have low barriers to both. I think that a lot of “replication” has to occur before there is new “creation”. There are other things to consider: patents and copyrights play into this as well. A small fraction of the worlds population participates in “recognized” “intellectual property” efforts, the vast majority of the worlds population is not participatory.

  140. poptones says:
    March 5, 2006 at 1:04 am

    But I think that what Josh was getting after is that OpenDOS, or projects like it do not have to always come into existence, if, say MS lost interest in renewing the MS-DOS license after the first 5 year term was up…

    Uh huh. In that case you could have just hijacked the code and done with.

    Problem is, this fails the stated goal of copyright. Your free ride has failed to foster the creative process and advance the state of the art. Denying you that free ride created a market for an entirely new expression. This is how copyright is intended to function… duh.

    This is the dream, but the reality is vastly different.

    Uhhh.. dude, your grip on reality is quite obviously failing. The example provided is reality, ergo “the reality” is provably not “vastly different” – it is, in fact, exactly what I stated.

    But then, it’s been obvious over 140 posts now the grip on reality you and josh maintain is tragically frail…

  141. poptones says:
    March 5, 2006 at 1:15 am

    A small fraction of the worlds population participates in “recognized” “intellectual property” efforts, the vast majority of the worlds population is not participatory.

    And, thus, Khofi Ahnan reminds us (again) of the need to protect creativity in the developing world…

    Your ethics refute those of humanitarians the world over. That alone doesn’t make you wrong, but it makes a damn good case you are.

  142. Jim Powers says:
    March 5, 2006 at 6:55 am

    Uh huh. In that case you could have just hijacked the code and done with.

    ??? Hijacked the code? In my response I was talking about MS-DOS falling out of copyright (ok, I used the word “license”, by bad, I meant to say copyright) after 5 years. When this happens, assuming no other encumberment, the word “hijack” doesn’t apply.

    Problem is, this fails the stated goal of copyright. Your free ride has failed to foster the creative process and advance the state of the art. Denying you that free ride created a market for an entirely new expression. This is how copyright is intended to function… duh.

    I don’t see how this really plays out: incremental changes based on the works of others can be quite useful; in fact this is the norm. In fact they can be just as useful as an entirely new expression. I don’t see how something “entirely new” is tantamount to advancing the “state of the art”, whatever that means. I would say that both “entirely new” and “incremental change” are both neutral to the goals of advancing the “state of the art”. I would go further that, while we wait for the “entirely new” thing that many “incrementally changed” creative works may prove to be beneficial.

    Let’s take the MS-DOS falling out of copyright after 5 years example: When this piece of software goes into the public domain many variants based on the original work would probably arise (assuming that there was a significant base of developers interested in working with MS-DOS, and considering that OpenDOS exists I would say that thresholds was passed). Some of these variants could include bug fixes, or enhancements that MS simply never considered.

    So, I don’t see how you can simply, and completely equate “entirely new” with “advancing the state of the art” in all cases.

    Try another analog: 90%+ of all new businesses fail. Many of these new businesses could be construed as being “entirely new”, but for one reason or the other the market did not see these “entirely new” businesses as advancing the “state of the art” of meeting the market’s needs. Now, this is an imperfect analog, please, let’s not start picking apart this analog with a surgical knife, the overall message should be apparent.

    Uhhh.. dude, your grip on reality is quite obviously failing. The example provided is reality, ergo “the reality” is provably not “vastly different” – it is, in fact, exactly what I stated.

    I beg to differ, but doing this is going to only result in a child-like “yes” and “no” argument; in that vein I’m jumping the line to “no, to you infinity plus one!” Like it or not, my delusional sense of reality accurately models the world around us. Very little of the code I have written, or the code engineers I manage or work with constitute “totally original works”. You can feel free to disagree, but this is not going to get us anywhere. My suggestion, because I’m biased, is that you accept what I am saying at face value.

    As an example: your new web site ( http://poptones.f2o.org/ ) is based on php and drupal. It is not a totally original work, do I think that because of this you are not advancing the state of the art? Hardly.

    I will respond to your other post in a bit.

  143. poptones says:
    March 5, 2006 at 9:10 am

    I don’t see how this really plays out: incremental changes based on the works of others can be quite useful; in fact this is the norm. In fact they can be just as useful as an entirely new expression.

    And, in this case, all those “incremental changes” may be applied to openDOS.

    In every popular application that is proprietary, a “free” competitor has sprung up as soon as there was sufficient demand. Photoshop, Premier, Office, even Windows itself – there are compelling competitors to these products that exist in the free domain. And in many cases these free works have provided inspiration to those proprietary works as well.

    As an example: your new web site is based on php and drupal. It is not a totally original work,

    Apples and oranges. That page is about the content, not the design of the site itself. I could have used blogger (and have in the past) but its features suck. I could have as easily used another proprietary back end but I’m cheap (and too busy right now to even create a new template) but I also want more features than most of those proprietary back ends offer. This has nothing to do with the content – I did not sign away part of my rights on the content I create to the developers of drupal in exchange for the right to use their publishing tool.

  144. Jim Powers says:
    March 5, 2006 at 9:56 am

    And, in this case, all those “incremental changes” may be applied to openDOS.

    In every popular application that is proprietary, a “free” competitor has sprung up as soon as there was sufficient demand. Photoshop, Premier, Office, even Windows itself – there are compelling competitors to these products that exist in the free domain. And in many cases these free works have provided inspiration to those proprietary works as well.

    The “free” alternatives were created out of the need of the “free” community to have “free” alternatives. If protections (copyright and patents) on these pieces of software ran out quickly then there is an argument that people wouldn’t have to re-create the wheel, so to speak. But we have what we have there is not point in disputing it.

    Now, folks like the FSF go further: code released into the public domain is one thing, and not a bad thing at all, but such software does not ensure the “freedoms” that they seek. In particular the “viral” nature of GPL-licensed software could not apply to public domain code. But folks who are comfortable with non-copyleft licenses would feel quite happy to take code that has moved out into the public domain and do useful things with it.

    I think competition will flourish even if the copyright system and patents were to be dissolved. The “free” software community is quite alive with competition despite your freedom to mix-and-match (a.k.a. remix) software with compatible licenses. Certainly the “free” software world is far more awash with competition than the non-free world: numerous “free” operating systems, “window managers”, “desktop environments”, audio players, office suites, email clients, etc. This is a good thing. The perl catchphrase “There is more than one way to do it” is alive and well. For instance, I recently had to look into bug tracking systems for my job. Now, I really like Bugzilla, it fits my mind well, but the guy I worked with didn’t like it. I wound up looking at about 25 “free” systems and installing and testing out at least 12. The interesting thing is that, while there was a lot of cross-pollination of ideas, different “free” packages created their own distinct added value. In some cases some of the systems were forks of other systems with really cool new ideas, while in other cases many ideas from other packages were borrowed and mixed in with other new ideas. This kind of free experimentation is truly vital and I am eternally thankful that this chunky soup we call “free” software exists.

    Apples and oranges. That page is about the content, not the design of the site itself. I could have used blogger (and have in the past) but its features suck. I could have as easily used another proprietary back end but I’m cheap (and too busy right now to even create a new template) but I also want more features than most of those proprietary back ends offer. This has nothing to do with the content – I did not sign away part of my rights on the content I create to the developers of drupal in exchange for the right to use their publishing tool.

    No doubt, but I think we are talking across one another. I was not making comment about your content, but should you choose to hack drupal to say, add a module, or change the way something works in drupal, I would not look upon that contribution with down-cast eyes and up-turned nose and say “bah, disgusting little change, no creativity here.” No, I would say: hack the fucking shit out of drupal! Think of it as a block of marble and create away. You were probably motivated to do this hack because of some over-arching need, and you are probably not the only one who could make use of your new creation. You didn’t start with a work that you originated but you wound up with a new creation, some of it by your hand some of it by the hands of others. I consider this a good thing.

  145. Jim Powers says:
    March 5, 2006 at 10:23 am

    Josh,

    Next challenge:

    Alice creates a work X, it is released with DRM. Embedded in X is a program called IfYouOnlyCould that removes the DRM on X. IfYouOnlyCould is a patented program. Basically: crack the DRM on X violate patent on IfYouOnlyCould. Or you could pay the license fee for IfYouOnlyCould which is an infinite amount of money. As far as I can see this is a stalemate.

  146. poptones says:
    March 5, 2006 at 11:08 am

    If protections (copyright and patents) on these pieces of software ran out quickly then there is an argument that people wouldn’t have to re-create the wheel, so to speak.

    But we are not recreating the wheel. The wheel exists and is right there in front of us. All we need to do is replicate the wheel and now we have one as well. but that’s not progress. In order to have progress you must understand the wheel. We must study it and establish rules and formulae that help us apply the wheel to other areas of our lives. In order to do that we must have education and stimulus.

    …hack the fucking shit out of drupal! Think of it as a block of marble and create away. You were probably motivated to do this hack because of some over-arching need, and you are probably not the only one who could make use of your new creation.

    But I am not going to publish my hack. I am going to create all these cool new modules but I am not, in any way, obliged to share them with you. Now I have created something “new” of arguable merit – what do you do?

    You compete. And the competition fosters new creativity. There is no assurance your version will be “better” than mine – but it will be different simply because the odds of the two of us creating the exact same code are so astranomically high. And if you share yours, then someone else will adapt it further. Meanwhile I will either have to pay someone to evolve mine further, do it myself, start sharing mine so others can take up the slack, or simply throw it all away when I finally realize yours is better.

    You cannot outlaw proprietariness, and attempts at discouraging that trait are not in the best interest of progress.

    Collaboration can be competitive, but it’s not necessarily the best way. Jazz is a great example: musicians are collaborating on a piece but at the same time they compete by exchanging riffs. Dizzy Gillespie and Charlie Parker both finesse and showcase their craft onstage through this exchange. Both benefit and we all get to enjoy eavesdropping on the exchange – but maybe not so much if you’re not a Charlie Parker and Dizzy Gillespie fan. Others may not like them and want nothing to do with them – as is their right – and that competition gives us new voices.

    You cannot even use a computer without replicating data. Reproduction of data is an inherent part of the machine, almost its essence. You don’t foster creativity by passing laws that only further reinforce a property which is already inescapable. Giving someone a networked computer and then encouraging them to share data is easy: it’s like throwing someone in the river and then “encouraging” them to get wet. What we need is to get them to swim, and that’s not always so easy.

  147. Jim Powers says:
    March 5, 2006 at 11:12 am

    Josh,

    Upon further consideration I think that your method for addressing DRM may have some serious problems. I await your responses, but, at least in my mind the floodgates are open…

    It appears that software patent encumberment is the weak link in your plans. All that is necessary is that any developer of a DRM system patent both the encoding as well as the decoding algorithm. They can then release their DRM encumbered content knowing that to remove the DRM requires violating a patent. Now, some sort of exemptions could be provided in the case of DRM, but so begins the slide down the slippery slope. We earlier discussed examples where I sent encrypted e-mails using “mere encryption” as a form of DRM. It would appear that if exemptions were provided to allow cracking of DRM that would be immune to patent litigation, then this could also apply to encryption algorithms in general. Now, encryption and compression are very closely related fields and I’m already imagining collateral damage in the compression world. It seems to me that if you want your way you’re going to have to take a stance against software patents as well (which would make me VERY happy, but make the job of “fixing” this problem much harder).

    This are EXACTLY the kinds of problems that can arise when, as Eben Molgen says, you “treat indistinguishable things in unlike ways.”

  148. poptones says:
    March 5, 2006 at 1:02 pm

    Software is nothing but a box of rules. An Arizona company called Microchip Semiconductor, in the early days of its PIC microcontroller, made a big deal about its merit as a replacement for discrete and field logic – that is, replace a bunch of 74xx logic chips and maybe a small fpga with a cheap general purpose microcontroller. What’s the difference at that point? The functionality between the two devices is identical, one is just programmed with wires and fuses and the other programmed with… fuses.

    When your desktop computer becomes a window into a virtualized world where we can “download” a new DVD player, video mixer, or dedicated publishing appliance (ala tivo vs mythtv) then how do your protect patents? Do you just deny any and all patent protection in the new realm because it is virtualized? In doing that you deny tremendous opportunity to the proletariat who do not have so ready access to the infrastructure of making the physical things upon which you still allow patents.

    There, now I’ve made that case. Look up the parent page and see my other reply regarding software patents – the one to TBM in which I pointed out the dangers of software patents – and try to make the case I’m being dogmatic about this.

    In the end, providing the same protections to “virtual devices” that we provide physical ones has much more potential to benefit the proletariat in that it allows us the means to invent, produce, and sell “things” even when we have access to no significant infrastructure. Programmers have been able to do this for decades – why shouldn’t painters and musicians and poets? A painter can paint a mural on the side of a building and you have no “right” at all to alter it without permission of the building owner. This protection exists completely outside your ability to photograph the building and alter that photograph, or to paint your own mural on another building that parodies it. How does affording artists this choice in the virtual realm in any way inhibit creative expression?

    Proprietariness gives incentive to gain knowledge and fosters new and competetive creativity. It’s not in our best interest to legislate into futility any voice that simply conflicts with our own world views.

  149. Jim Powers says:
    March 5, 2006 at 4:33 pm

    But we are not recreating the wheel. The wheel exists and is right there in front of us. All we need to do is replicate the wheel and now we have one as well. but that’s not progress. In order to have progress you must understand the wheel. We must study it and establish rules and formulae that help us apply the wheel to other areas of our lives. In order to do that we must have education and stimulus.

    Ok, let’s stick with the MS-DOS/OpenDOS example. I think that it is obvious that, assuming that OpenDOS is a replication of MS-DOS (which, I think you would agree is a very broad generalization, and one that does not give due respect to the work of these hackers. I’m quite sure that the OpenDOS hackers view their works as a truly new creation, as would the the hackers behind ReactOS, Haiku, and GNUStep), the force that was behind its creation was the need to have a “free” version of MS-DOS. Although some group of hackers learned a immense amount in the process of creating this “replication”, therefore gaining understanding, the fact remains that all the understanding that was needed was already “out there”, in the minds of the MS-DOS programmers at Microsoft. OpenDOS is the result of the perceived need for a “free” alternative to MS-DOS. The fact that it is basically a drop-in replacement is by design, there was a perceived need to have such a program (one that could run MS-DOS programs reliably). Also, the fact that MS was not inclined in the slightest to give up whatever controls it has on MS-DOS created an environment where OpenDOS could come into existence. MS could have changed this environment, it could have released MS-DOS into the public domain, or under some sort of permissive license and people could have started out hacking that instead. It didn’t happen. Nothing further to say here. As to whether or not the creation of OpenDOS, ReactOS, Haiku, GNUStep, MAME, etc. is or is not progress I’ll let you keep your judgments and I’ll keep mine, but it appears that we disagree.

    But I am not going to publish my hack. I am going to create all these cool new modules but I am not, in any way, obliged to share them with you. Now I have created something “new” of arguable merit – what do you do?

    Hmm, firstly, I guess that we have to agree that I can choose to do nothing at all, so that is an option. By me doing nothing has no bearing on the fact that you still created a useful work starting with something that you did not originate.

    I guess another option I could pursue is to see if you’ll sell me a copy of your work. Now, if your modifications were only in the form of modules, and truly “stand-alone and separate” then the fact that Drupal is released under GPL is of no consequence you can sell me your modules under what ever license you want. If your changes are to Drupal and its modules that are under the GPL you need to provide me the source code of your changes and you cannot change the terms of the license (GPL).

    Another option is that I could try to recreate your changes myself.

    You compete. And the competition fosters new creativity. There is no assurance your version will be “better” than mine – but it will be different simply because the odds of the two of us creating the exact same code are so astranomically high. And if you share yours, then someone else will adapt it further. Meanwhile I will either have to pay someone to evolve mine further, do it myself, start sharing mine so others can take up the slack, or simply throw it all away when I finally realize yours is better.

    Or not. As I said, I could choose to do nothing at all, this does not diminish the fact that you did create a new works starting from the old one. As far as fostering new creativity, competition is not the only way to foster this, it is only one way that this can come about.

    There is another possible course of action: we could collaborate, as is often the case in “free” and “open source” development.

    So in the end I see many possible ways this “situation” could play out, but we agree on my initial statement that created works do not need to be “entirely new” to reach the threshold of being “good” or “useful” or “worthwhile”.

    You cannot outlaw proprietariness, and attempts at discouraging that trait are not in the best interest of progress.

    Never said it. No plans to say it. Overall “progress” happens. There are many causes, many motivators, many forces that makes “progress” happen.

    You cannot even use a computer without replicating data. Reproduction of data is an inherent part of the machine, almost its essence. You don’t foster creativity by passing laws that only further reinforce a property which is already inescapable. Giving someone a networked computer and then encouraging them to share data is easy: it’s like throwing someone in the river and then “encouraging” them to get wet. What we need is to get them to swim, and that’s not always so easy.

    You cannot read, listen, or view a movie or painting or play without replicating data, in your head. The fact that computers also do this is of little consequence because replication, copying, of data is an intrinsic property of being human. The copying property you speak of is directly useful in feeding the human brain with data that it uses when synthesizing new thoughts. Creativity will come, some people will learn to swim, others not, in your analogy. As far as reward: reward will be defined by individuals: satisfaction, sense of making a difference, money, fame, etc. Our laws provide a some incentives, but these are only a portion of the spectrum of incentives available to people.

    Software is nothing but a box of rules. An Arizona company called Microchip Semiconductor, in the early days of its PIC microcontroller, made a big deal about its merit as a replacement for discrete and field logic – that is, replace a bunch of 74xx logic chips and maybe a small fpga with a cheap general purpose microcontroller. What’s the difference at that point? The functionality between the two devices is identical, one is just programmed with wires and fuses and the other programmed with… fuses.

    Alan Turing showed that what we consider “hardware” or “software” used by computational devices is purely arbitrary.

    When your desktop computer becomes a window into a virtualized world where we can “download” a new DVD player, video mixer, or dedicated publishing appliance (ala tivo vs mythtv) then how do your protect patents? Do you just deny any and all patent protection in the new realm because it is virtualized? In doing that you deny tremendous opportunity to the proletariat who do not have so ready access to the infrastructure of making the physical things upon which you still allow patents.

    Me, personally, I’m adamantly anti-software patents, that should be obvious by now. The criteria I would use to define the edge of patent applicability would be where physical laws stop. It’s a nice clean line. Sure physical laws apply to computers, but not to software, or math, or literature or any other forms of crystallized thought.

    In the end, providing the same protections to “virtual devices” that we provide physical ones has much more potential to benefit the proletariat in that it allows us the means to invent, produce, and sell “things” even when we have access to no significant infrastructure. Programmers have been able to do this for decades – why shouldn’t painters and musicians and poets? A painter can paint a mural on the side of a building and you have no “right” at all to alter it without permission of the building owner. This protection exists completely outside your ability to photograph the building and alter that photograph, or to paint your own mural on another building that parodies it. How does affording artists this choice in the virtual realm in any way inhibit creative expression?

    Treating “things” that inhabit the world of human thought in a similar, or even analogous way to objects in the physical world is both dangerous and counter-productive on a large scale. I do not agree with your conclusion that it has potentially tremendous benefit, I argue strongly that the opposite is true. Unfortunately due to my personal time limitations I will not be able to address this issue fully right now.

    With regard to specific creative works, people can sell or give away whatever they want (within other legal restrictions) digital or otherwise.

    The example of the painting on the side of a building, is is a physical object, with boundaries, as I’ve already said the laws that apply in this case are not perfect, but quite workable. I am surprised that poptones would, in fact, allow me to make copies of the image of this physical object with a camera, hmmmm.

    Proprietariness gives incentive to gain knowledge and fosters new and competetive creativity. It’s not in our best interest to legislate into futility any voice that simply conflicts with our own world views.

    Firstly, creativity is creativity. Creativity can be good, bad, or ugly. It can be competitive (spawned out of some sort of competitive situation) it can also be need based or simply spontaneous. Newness of a creative work is in the eye of the beholder. Proprietariness[sic] is but one pathway one may choose before, during, and after making creative work. I don’t see legislating away the right to keep information secret that relates to the production of creative work going away any time soon, I also don’t advocate this situation. I would advocate providing a legal incentive to do one better than patents: give some sort of incentive that encourages businesses to share creative works that is non-restrictive, as is the case in patents.

    This said, I must adjourn for I am under deadline pressure and will not be able to pick up this conversation until after Wednesday of this week.

  150. poptones says:
    March 5, 2006 at 4:46 pm

    where physical laws stop. It’s a nice clean line.

    No, it isn’t at all. It was before computers. Your logic is competely archaic. Without software cars will not run, tvs will not function, telephones will not ring. Your logic of enforcement would leave us stuck in the america of the 1950s.

    With regard to specific creative works, people can sell or give away whatever they want (within other legal restrictions) digital or otherwise.

    By your arguments in regard to patens and copyright, they can’t. They are only allowed to give or to be forced into the realm of physical embodiments – exactly the world that allowed those old world publishers to obtain the control they have now.

    Your arguments deny untold potential to the prloetariat and, if legislated, would undo many of the gains we have already made in usurping those old channels of control.

  151. Jim Powers says:
    March 5, 2006 at 5:10 pm

    No, it isn’t at all. It was before computers. Your logic is competely archaic. Without software cars will not run, tvs will not function, telephones will not ring. Your logic of enforcement would leave us stuck in the america of the 1950s.

    Software is not subject to physical laws, that is simply the truth. The fact that we can create devices that can be controlled by software and interact with software is of no consequence.

    Software has no mass, no charge, no length, width, or depth. The devices we create that run software has these properties, but the software itself is immune to the laws that control our physical world.

    By your arguments in regard to patens and copyright, they can’t. They are only allowed to give or to be forced into the realm of physical embodiments – exactly the world that allowed those old world publishers to obtain the control they have now.

    I can take a picture of my cat, put it on a Web site and charge a $1.00 a copy. I see nothing stopping me. Now, with regard actually getting my money, that is a different issue, tied up in copyright law, law enforcement, banks, finance, etc.. But there is nothing stopping me from doing this.

  152. poptones says:
    March 5, 2006 at 8:02 pm

    Software is not subject to physical laws, that is simply the truth.

    Wrong. To even claim this is to reveal an outstanding ignorance of technology. Software drives our society. To remove software would be to set the world back decades. It is every bit as much a tangible part of our lives as television sets, cars, traffic lights, banks, and cold, hard, cash – the majority of which is every bit as “virtual” in value and merit as your favorite bit of desktop appliance code.

    The fact that we can create devices that can be controlled by software and interact with software is of no consequence.

    No consequence to who? You? This is balatantly circular logic; it is anti-logic: it is proof by assertion.

    I can take a picture of my cat, put it on a Web site and charge a $1.00 a copy.

    No, you can’t. You can request a buck a pop. And if someone really fancies your pussy (hey, you opened that door, I’m just walking through it) you can put up a hundred more pics, even though the customers now know what they’re buying and really want to see more of it, you still can only request they pay up.

    More importanly, your pussy pictures have no value because they fall from the sky like rain. They have zero collection value, only feed a temporal desire. There is no time to foster quality in your work because the only way you can actually earn a living from your work is to crank out ever more dross to churn into the machine.

    This is ridiculous. It’s been pointed out to you dozens of times now how there’s substantial value to be realized in “virtualized” commerce yet all you do is say “I disagree.” That’s not a compelling argument and you have provided zero objective proof to back up your non-argument. Luckily, your opinion is not shared by a substantial body of policy makers who are not technocratic luddites…

  153. Jim Powers says:
    March 5, 2006 at 9:36 pm

    Wrong. To even claim this is to reveal an outstanding ignorance of technology. Software drives our society. To remove software would be to set the world back decades. It is every bit as much a tangible part of our lives as television sets, cars, traffic lights, banks, and cold, hard, cash – the majority of which is every bit as “virtual” in value and merit as your favorite bit of desktop appliance code.

    No, my statement about software is not wrong. Not even remotely so. In order for something, anything, to be subject to physical laws it has to posses physical properties such as mass, momentum (photons are massless, but have momentum), charge, extent, it must be composed of some sort of particles, etc. This simply isn’t true. There are no physical forces that can be applied to software. This is not my opinion, it’s not even a scientific “fact” because empirical evidence is not required to validate this statement, it is simply true.

    Here, try this on for size: if software is physical then there should be a way to touch it. Go ahead, try to think of a way to touch software. Next. does software have a well-defined form? Really? So the orientation of magnetic domains on your hard disk that holds copies of data we know as software is it, right? What about he states of the gates in your DRAM? And those pits burned into the surface of CD-ROMs. Or the holes punched into ye olde IBM puch cards. Software has no physical properties. It has no shape, or smell, color or taste.

    We use the physical world to encode information. Software is information. Data is information. Software and data are indistinguishable. For instance: I could encode a movie as data for which some software acts on, I could equally encode a movie as a program that flips pixels. Where I draw the line is arbitrary. You may need a moment to understand that this is true, but it is, and irrefutably so. It is the worst kind of true, it is mathematically true. It is as true as the fact that any “program” that can be encoded to be “run” (evaluated) on a Turing machine (the mathematical model that is the basis of the computers we use every day) can be converted to Lambda calculus, a completely satisfactory computing model as powerful as Turing machines, but has no state, like all of those functional languages like Haskell and OCamel and Scheme. All this is to say that physical encoding of information is not the same as the information. Hey, you said that, yet you didn’t seem to comprehend what this actually meant. I can choose any physical encoding scheme I want to represent information, and therefore software. The encoding scheme is usually chosen because it is convenient, but it can be anything so long as your rules for encoding the information actually allows you to get the information back.

    All of the examples you gave: telephones, air traffic systems, car control systems, etc. Many of these pieces of controlling software started out life embedded in a simulator. What kind of simulator? A reality simulator. Air traffic control systems were not simply put into towers. The basics started out as kernels run within a simulation environment where the various inputs to the control software could be controlled through… OTHER SOFTWARE! all of the inputs to the the traffic control software would be tested out under various operating conditions to see how it would react. Then it would graduate to a field test of some sort where its operation would be compared to the simulated environment. Finally a series of incremental roll-outs would occur before full deployment. But, there is no “there” in software. Software and information are not bits, bytes, squiggles of ink on pages, pits in the surface of aluminum and plastic discs, or the orientation of magnetic domains on the surface of a hard disk platter. Software and information is beyond the reach of our senses and the physical universe around us, but we use the physical universe as a tool to record information.

    Here are some other fun games you can play:

    You’ve heard of the “Game of Life”. It’s a cellular automata problem that has some really interesting properties. Well, it turns out that the “Game of Life” played out on an infinite grid is “Turing Complete”, that is to say that any computable function that can be computed on a Turing Machine can also be computed on the Game of Life given an infinite board. This means that for any piece of software that has ever been written or could ever be written I could write it out on the Game of Life.

    Another example: Railroad switches. Turing machines have been programmed using railroad track switches (this has been done theoretically, not actually, you think that their that crazy?) Again, any software that is possible to write could be written using railroad track switches. (of course the trains are involved in the computation).

    Final examples: Software without computers. Firstly, books like Knuth’s “Art of Programming” are chock full of software. I mean it, the real stuff. It is there represented on the page as real as the stuff on your hard disk. Next. In the days before we created mechanical devices capable of being as flexible as the computers we have today, people still wrote “software”. There were literally people known as “computers” who would fill up tables and charts with various partial calculations. They were following an overall program designed by somebody. This kind of work was vital. It was used during many wars for encryption and for computing numerical charts needed by sailors to determine their longitude, for example.

    You can claim that it is otherwise, but I’m afraid that it would be your turn to play the ignorant party if you did; software is not subject to physical laws.

    No, you can’t. You can request a buck a pop. And if someone really fancies your pussy (hey, you opened that door, I’m just walking through it) you can put up a hundred more pics, even though the customers now know what they’re buying and really want to see more of it, you still can only request they pay up.

    (OK, you got me on the cats, sheesh. Next time I use rocks or something.)

    It is interesting that you say this because in my day job I work on a photo archive site. Our customers range from individual professional photographers to photo agencies. The site we have was designed to allow people to receive requests for photo pricing and then these photos could be released. But many of our customers choose to simply give download rights to their members. Then they look at their download reports to see who has downloaded photos, they call them up, find out what they are using and send a bill. It has turned out to work out really nicely this way. There is more than one way to address this problem, some of it, again, as has been pointed out to you on numerous occasions involves dealing with an trusting people.

  154. poptones says:
    March 6, 2006 at 12:54 am

    Then they look at their download reports to see who has downloaded photos, they call them up, find out what they are using and send a bill. It has turned out to work out really nicely this way.

    Good for them. It’s not your right or that of the government, however, to tell them this is the business model they must use in order to earn a living. Rationalizations of merit are, in this case, “irrelevant.”

    The GID patent is a great example of patenting “things.” What is a GIF? Can I touch it? No, I can’t. Doesn’t mean GIFs don’t exist or are not ‘real.” and protecting them by patent led directly to the creation and widespread adoption of a free alternative. In many mainstream web communities the GIF has all but disappeared because the reinvented competing technology offers more features – it’s “better” and it’s free. Same thing with MP3s and ogg: proprietariness fostered more creativity, and we all benefit as a result.

    Granting patents that are too general or too obvious is a real and critical problem right now, but that doesn’t make all patents a pox on our house.

  155. Jim Powers says:
    March 6, 2006 at 5:51 am

    Final comments until after Wednesday (really this time for sure, I’m seriously under the gun):

    Selling stuff on the Web: Go ahead. I don’t think I said anything that would stop people from doing this. How they choose to sell is basically up to them.

    Software patents: way too big a subject for me to get into right now. My views on the subject are an extension of the FSF/GNU’s view and are too time consuming to go through here. So, I’m going to have to bail and do the cheap thing and drop a few links:

    http://www.juergen-ernst.de/info_swpat_en.html <- really good one

    http://www.researchoninnovation.org/patent.pdf <- really good one

    http://www.gnu.org/philosophy/fighting-software-patents.html

    http://www.ffii.org/

    Sufficed to say that I completely and wholeheartedly do not buy any of the beneficial clap-trap that supporters of software patents purvey.

  156. Jim Powers says:
    March 6, 2006 at 6:47 am

    Aw crap! Lessig’s blog (moveable type) has some sort of friggin’ bug. I was getting errors when I was posting and I thought the posts weren’t taking. Very sorry about the multiple posts.

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