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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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Copyfight

« Wanted: Stupid Patents | Main | What Colour Is Your Paradigm, Part II »

June 11, 2004

What Colour is Your Paradigm?

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Posted by

Matthew Skala of Cyber Patrol reverse-engineering fame, in a very interesting essay on why Monolith looks a lot different to those equipped with a J.D. than it does to computer scientists:


Computer scientists who want to try to be helpful may say, "Okay, you, the lawyer, are a dangerous idiot, but I have to work with you or be thrown in jail as a Commie Mutant Traitor as happened to Dmitry Sklyarov, so I'll try to address your concerns. You say there is some special property of some bits and we need to know which bits have this property. Fine. We'll attach tags to the files to say what 'Colour' they are." In the copyright realm, that's the "rights management information" solution. It's what they do with DVDs (region coding), VHS tapes (Macrovision), Adobe eBooks ("you may not read this file aloud"), CDs (SCCM), and many other formats. The trouble is, if we (as computer scientists) are intellectually honest about it, we'll have to admit that it can't really work.

(Via Seth Schoen.)

Comments (17) + TrackBacks (0) | Category: Big Thoughts


COMMENTS

1. Seth Finkelstein on June 11, 2004 12:25 PM writes...

That's Cyber Patrol reverse-engineering fame (if this doesn't work, I'm linking to http://ansuz.sooke.bc.ca/cpbfaq.html )

Permalink to Comment

2. Seth Finkelstein on June 11, 2004 12:37 PM writes...

By the way, the essay can be made more readily understandable if one realizes that his term "Colour" is in legal terms "OWNERSHIP".

"OWNERSHIP" is not a physical property. It's a social construction. So the point becomes that trying to put the social construction called ownership (or Digital-Restrictions-Management) in terms of a physical property, well, has problems.

Permalink to Comment

3. Brad Hutchings on June 11, 2004 1:58 PM writes...

Interesting coincidence that I read this while watching President Reagan's funeral. As solemn moments often go, one's mind often drifts to weird thoughts, like, for example, how could Gorbachev not feel profound humiliation in having to sit in a cathedral (as a former leader of an officially godless nation) and listen to eulogy after eulogy itemize how this President came, saw, and kicked his (Gorbi's) ass with a cheerful demeanor? And yet, reading this essay, I could not help but feel deep empathy for Gorbachev.

IANAL, but copyright as law and as social norm are extremely important to my ability to earn a living. I do not call myself a computer scientist (though I hold a MS in computer science with a specialization in theory of algorithms and data structures). I would first and foremost label myself a creative person. In every in-person and anonymous interaction with a paying customer over my career, I asserted my right to my creation, they recognized that right and desired a right of their own, and they purchased it. In most of these interactions, neither party was a lawyer or a self-proclaimed computer scientist. And yet we understood this things about colors -- that I had broad rights to my creation and I wished to confer some of those rights on another in exchange for payment. I've shared similar discussions with professional artists and musicians, and the shared conclusion is that it's a good thing that regular people without legal training generally recognize our rights, as if they didn't, we'd have un-fun careers and our customers would not have the opportunity to enjoy our works.

Consider physical private property... We "color" our homes with "private property" signs, with fences, dead bolts, dogs. As demarcation features, these can be very effective, while as physical or even legal barriers, they can be quite weak. For example, if you were a grocery store owner during the LA riots of a decade ago, you may have found yourself defending your store with a shotgun because a mob did not respect your rights. An interesting item about California law that I learned recently is that if a burglar enters your home and is attacked by your dog, you may very well be held financially liable for injuries suffered by the burglar, even as he is criminally liable for breaking into your home. And even as these protections of our property are not fail-safe, we employ them to designate what is ours, and for the most part, reasonable people who also have their own property respect it. And we are all richer, more secure, and more free for respecting property rights.

As with physical property, intellectual property does not guarantee optimal outcomes. A neighbor may wish to paint the exterior of his home bright orange, and there may be a range of steps we can take -- from one on one discussion to appeal to covenants and laws -- that we might take to convince him to do otherwise. And we don't abolish private property or our individual faith in it because the guy successfully
defends his right to paint his home orange (and adds splashes of chartreuse for spite). So it is with IP and DRM schemes. An Adobe eBook that does not grant the right to read aloud (or even that it's phrased that way in the system) is certainly a legitimate topic of criticism and discussion. The rights allowed by Apple's iTMS are similar. The market has a way of sorting these things out with much wider societal participation and thus legitimacy than do a few elite voices in halls of ivory towers. Disagreement with provisions of DRM schemes are certainly not a legitimate reason to vandalize or take down the "do not enter" signs, nor are they legitimate reason to advocate conscious ignorance of such signs or circumvention (no matter how trivial the perl script) of their protections.

If the Copyfight is on a crusade from all fronts against DRM, I cannot help but conclude that the Copyfight is generally hostile to the whole concept of intellectual property. The latter position being unfathomable to most thinking and living people, the former position seems nothing by a proxy for the latter. Convince me that I'm wrong about this.

Permalink to Comment

4. Seth Finkelstein on June 11, 2004 2:36 PM writes...

Brad, I say the following not to be nasty, and I don't mean for it to come off as rude or dismissive, it only might appear that way since it's a short piece of text, but no offense is intended:

Nobody here will convince you that you're wrong about it, because the *MORAL MODEL* you are using is simply not the *same* *one* as others.

THIS DOES NOT MAKE OTHER PEOPLE IMMORAL!

It's like someone who starts out saying "I don't know how an atheist can be moral, since God is the source of morality - convince me that I'm wrong".

It's not going to happen. This doesn't mean atheists are immoral.

The conversation above tends to be "But if you don't have God, you must be following Satan, and that's horrible, chaos, damnation".

And it's difficult to impossible to convince otherwise, since there's such a gulf in assumptions.

You seem to have what I call the "Business Model" view of copyright, that business models are somehow divine. The moment someone says otherwise, you're going to reply

"But how can you have a society that's not based on God, I mean, divine business models? Does this mean you're a Satanist, I mean, against all property?"

And it's just not going to work to go around this :-(.

Permalink to Comment

5. Brad Hutchings on June 11, 2004 3:38 PM writes...

Seth,

I appreciate your comments, though you have certainly juxtaposed my position on divinity with that of someone else ;-). The "moraliity" problem is one that civil society knows full well how to deal with. Law is nothing more than a codification of our most cherished moral principles. The people and government of the United States would very much like everyone to believe that murder is wrong (ok, bad example, that is a state issue) and that workers are entitled to a minimum wage. But in case that's not clear to all involved, we have laws and enforcement that make it more convenient for the non-believers to adopt the considered moral opinion expressed by our legislative process. There is always some room for ongoing reconsideration, and certainly, in the area of intellectual property, there are many issues we should revisit -- continually. Is patent granting too loose? Undoubtedly. Does that mean software patents have no place? I disagree. Should price differences between Canada and US drug wholesale prices be supported by trade law? I don't think that is right, and generally support relaxation of laws which allow drug companies to do this. Should a drug company be allowed to sell to Canada's health system for $X and to US consumers for $2X. Sure, but a free market will take case of that quickly enough. The point is that there are reasonable moral disagreements on IP regardless of where each of us start. There is a common ground where we can agree that there is a reasonable debate if not agree on which side of that debate we are on.

But your morality point really misses my point. I did not and would not call you immoral for not supporting basic concepts of intellectual property. What I am calling the Copyfight out on is its basic tenets. Is the DRM assault based upon an appreciation and support of IP rights in general, or is it a convenient battlefield in a campaign against such rights. "Color" matters here, because it informs our judgment of the arguments made in this battlefield. It's not morality. It's credibility. If you don't believe in IP rights, then there is no sense in anyone listening to your criticisms of DRM, because we already know what they amount to. If you do believe in IP rights, and yet simultaneously think, for example, that the "read aloud" bit in an Adobe eBook is a silly exercise of rights, maybe the conversation has a point and we can come to a reasonable consensus about what to expect as Adobe eBook customers and Adobe and authors could understand what is so silly about that.

Seth, stripping away the morality, your answer seems to be (please correct me if I'm wrong) that you don't support IP rights to begin with, and that "colors" my (and a lot of other people's) assessment of your credibility on these issues. Do you see why the DRM issue is seen as a charade if indeed it is being argued by people who don't support IP rights concepts to begin with?

Permalink to Comment

6. Brad Hutchings on June 11, 2004 3:59 PM writes...

Another example comes to mind... Do you ever get the feeling that if you took 10 partisan Democrats and 10 partisan Republicans and had a tax rate of 99%, the Dems would be for raising the tax rate and the Reps would be for lowering it. And if the tax rate were 1%, the Dems would be for raising the tax rate and the Reps would be for lowering it. That is a very similar feeling I get when reading the musings of the Copyfighters. While they may be on the right side of some IP issues of the day, if the only law of copyright were a requirement to credit the creator, they'd likely be against that too!

IIRC, it was Jefferson, who late in life, redrafted the legal code of the State of Virginia from scratch. In fact, he felt that this should be done periodically -- throw it all out and rewrite. He would make a fine software engineer today! His effort was not one of "less" or "more", it was an effort in setting the norm. What norm would the copyfight set if it could start from scratch? This is the fundamental question that needs to be answered before a color of credibility can be assigned to the general movement.

Permalink to Comment

7. Ernest Miller on June 11, 2004 5:44 PM writes...

Brad,

The problem is that your metaphors are flawed. For example, let us consider the example of "no trepassing" signs on private property. That is all well and good. It would generally be vandalism to take down a "no trespassing" sign on private property. But what if I put my "no trespassing" sign on public property? What if I put my "no trespassing" sign on your property? Would it be vandalism to remove it?

Of course not. The problem with DRM is that it not only protects the "property" of the rightsholder but prevent the public from doing many perfectly legal things as well. In such a case, the rightsholder is putting their DRM sign onto public property. When there is DRM that completely and comprehensively recognizes my First Amendment granted fair use rights, then I will have no beef with DRM.

I would also appreciate it if you stop asserting that we copyfighters oppose all copyright law. It is false and does not foster debate.

Permalink to Comment

8. Crosbie Fitch on June 11, 2004 6:04 PM writes...

The big joke uniquely enjoyed by copyfighters is that the intellectual propertyists fail to see that they are demanding the right to apply friction to their wares, friction which will ultimately consign their wares into oblivion.

Copyfighters really don't care about that, though altruistically, they wish to rescue some of their misguided brethren through persuasion.

The really, critical fight though is to prevent the IPists from applying their friction to the public domain as well.

Enlightened artists who wish to bequeath their art to the world without friction MUST BE PERMITTED TO DO SO.

Permalink to Comment

9. Donna Wentworth on June 11, 2004 6:24 PM writes...

Well said, Ernie.

The copyfight isn't about opposing copyright law. It's about recognizing when copyright strays from its original purpose -- promoting the progress of science and useful arts -- and begins to do exactly the opposite.

Permalink to Comment

10. Brad Hutchings on June 11, 2004 7:59 PM writes...

Ernest,

All you have to do is spell out what copyright law would look like ideally to you, and then we can consider having a reasonable discussion. To this point, all you have indicated is that it all sucks, roll back everything. Crosbie gets bonus points for honesty, although there is no way to "apply friction to the public domain". It is, after-all, the public domain and anyone can do what he sees fit with it. Donna gets points for implying that ownership is secondary to "progress". At least creative people know that they are subserviant to some other purpose in her ideal world.

Ernest, your private property sign metaphor is flawed. Physical land is not replicable, and we have a court system to settle such disputes. Because such disputes happen over and over again does not make the system of private property flawed. If anything, the disputes and their resolution demonstrate that it works. You seem to be hinting at putting DRM on a public domain work or some other work which you don't have distribution rights in. If you are asserting rigths (exclusive or otherwise) in some work which you do not have such rights in, again, we have laws and court system to resolve those issues. If you're wrapping DRM around something that is in the public domain, just seems to me that the Copyfight could be making arguments that such behavior is ridiculous rather than raling against DRM in total. After all, no harm is done to the work. It is still in the public domain for anyone to use, regardless of whether 1 copy of that work or 99% of copies of that work have somehow been saddled with DRM. Its color is "Public Domain Blue".

In law, we do not have a right where people who are making "fair use" of a copyrighted work have a right to expect it handed to them on a platter just in time in the right format. Perhaps that is a law we should consider. I'd be against it, as I think it's silly, but you know, if the Copyfight were for that instead of just being against everything else, the Copyfight would have a slightly more appealing color.

Ernest, I'll make this easy for you... If I create something, say a song, what rights and enforcement vehicles do you think I should have in that song even if I decide to be a total ass about usng those rights (pretend it's speech). Answer in 3 sentences and you can establish whether you believe in IP or not.

Permalink to Comment

11. Matthew Skala on June 11, 2004 8:14 PM writes...

There's a lot being discussed in the comments above that I'm not sure relates to the article I wrote at all, but just to throw in one point that I think is relevant:

Seth Finkelstein says that what I'm calling "Colour" is the same thing as ownership. Well... only sort of. Legal ownership (I'd rather say ownership of the copyright, but that's almost the same thing) is one kind of Colour, for sure, and it's probably the one most interesting to people who read this site. But I chose a different word because I wanted to emphasize that it doesn't have to map to just one legal concept. I myself am very interested in the question of whether a given file is or is not "illegal child pornography". That's a form of Colour, but it's not the same thing as "ownership".

- mskala

Permalink to Comment

12. Ernest Miller on June 11, 2004 8:47 PM writes...

Gee, Brad, apparently, the only thing that would satisfy you would be to write an alternative copyright treatise. I guess you can't critique anything unless your provide a complete and utter guide to the alternatives. For example, we should no longer have movie reviewers who critique a movie unless they subsequently go on to write and direct what they think would be the better alternative.

You might want to spend a little more time reading what I've written on the topic before you accuse me of wanting to simply roll back everything. I've been writing for years on this topic, first on LawMeme and now here. I've written extensively on a number of cases. I've written for exemptions to the DMCA, and put together briefs on the DMCA. I've also co-written a little paper on reforming one aspect of copyright called "Taking the Copy Out of Copyright."

Gosh, Brad, you're the one who brought up the physical property metaphor, now you are saying it is flawed because physical property isn't replicable. You're right. Perhaps that means we shouldn't blindly apply property law to things that are readily replicable.

I wasn't referring to public domain works. I was referring to standard copyrightable work. At some point the First Amendment commands that it be legal for me to copy some portion of copyrighted works for some purposes. That limited right to copy as fair use is my right, my property. If you deny that right you are trespassing on my property. You wouldn't want to trespass would you Brad?

I've never said that we have a right to be handed non-DRM versions of works. I am only arguing for the right to get around that DRM in order to make non-infringing use of a work. Non-infringing means it doesn't violate the rights of the copyright holder. Let people use DRM, but don't make it illegal for me to get around that DRM for non-infringing uses.

Brad, here is my answer to your asinine question, though you can hardly expect all the details in only three sentences:

Copyright should be the right of public distribution for a period of fourteen years, with a single renewable term of an additional fourteen years available upon payment of an annual fee. The right to sue for infringement is available only if a work is registered with the Copyright Office which requires submitting a non-DRM version of the work in the highest resolution format available to the creator (which means the source code with regard to computer programs). The right in derivatives is strictly limited to works that significantly substitute for the original work.

Permalink to Comment

13. Seth Finkelstein on June 11, 2004 10:19 PM writes...

Matthew, if by Colour, you were addressing "Meaning", that's somewhat broad. Again, "meaning" is a social property, not a physical property. Law is about social properties, not physical properties (which is the fundamental reason I'm not going to be a lawyer :-))

Brad, look at what you said here: "that you don't support IP rights to begin with," ...

To continue my metaphor, it's the difference between arguing over the meaning of a passage in the Bible, versus whether the Bible should be consulted at all.

Very roughly, I believe the copyright system is not like physical property. It's purely a social utility, not any sort of pre-existing natural rights ("statutory", in legal terminology). And technological change has broken the system. I don't know how to put it back together again.
That view is *different* from the viewpoint that holds copyright is indeed a natural right, and so the breakage is with people, not the system, and hence harsher legal restrictions are the proper reaction to bad people, rather than symptoms of a malfunctioning framework.

These are widely divergent assumptions about the fundamental justification of copyright. Saying "do you support IP rights" isn't the question - I think you're really asking there "Do you support *my assumptions about the moral/legal sources* of IP rights" - which isn't the same at all.

Permalink to Comment

14. Joseph Pietro Riolo on June 14, 2004 7:32 AM writes...

To Brad Hutchings,

I want to comment on your use of physical private property as an analogy.

The real property owners do not have absolute rights. One good example is the right-of-way. It is illegal for them to remove right-of-way in any way. So, if a person wants to walk across a property to go to the next adjoining property, the owner of the first property must allow him or her to do so. Otherwise, the owner will find himself or herself in court or battle with police.

We don't have the similar right-of-way in the copyrighted works. Authors and artists can decide to block users from exercising fair use through DRM or DMCA or whatever means without any consequence. What are the users supposed to do? Lay down and roll over?


Joseph Pietro Riolo
<riolo@voicenet.com>

Public domain notice: I put all of my expressions in this comment in the public domain.

Permalink to Comment

15. Brad Hutchings on June 14, 2004 1:13 PM writes...

Joseph, I have no idea where you live, but in the United States, that just is not the case with private properties and rights-of-way. I have called the police on door-to-door solicitors who decided that a garden was a right-of-way to the house next door, and believe me, the cops will find 100 ways to make sure the solicitor doesn't make his sales quota that day and doesn't come back. There are eminent domains and other takings, but our Constitution prescribes compensation in these cases, and it is not uncommon for an unlucky homeowner in the path of a new freeway to hold out and get a premium. This may be different in your own country. I'm curious.

Ernest, I appreciate you laying out your view of what copyright should be. No automatic registration? Wow. I am thankful that we have these rights delineated in law. I do find the common appeal to original intent of the founding fathers and Constitutional consructionism to be kinda curious. I suppose that if that is anything more than a convenient position to support your stand on copyright that you would be against 99% of federal spending that falls under the commerce clause and would be vociferously against any construed right of privacy. But I digress...

The Copyfiight seems to me to be similar in a way to the big-L Libertarian Party in California. If there is a $235 bond issue on the ballot, you can depend on whichever member of the LP isn't too strung out that day to write the official case against for the voter pamphlet and not appeal at all to small-l principles. Same with the Copyfight. DRM is "ineffective" or it "locks in a business model". Forget that what the ultimate goal is for nobody to have meaningful distribution rights in their creative works.

Permalink to Comment

16. Ernest Miller on June 14, 2004 2:12 PM writes...

Brad,

You see, this is precisely the reason I hesitated to try to sum up what I think copyright law should be in 3 sentences, because then you would point to things I actually missed or you think I missed.

You see, under current law we have automatic copyright, you don't have automatic registration. When I "fix" original expression, copyright automatically accrues under current law. I wouldn't change that. However, the right to sue for infringement is a different story. You do realize Brad, do you not, that under current law there is no automatic registration (one must actually fill out paperwork and submit stuff to the Copyright Office to be "registered") and that you cannot actually sue for infringement until you register a work?

As for the picking the times, yes it is a convenient call back to the founders. However, the justification is not solely based upon the founders but upon the economics of incentivizing creation. The exact term is subject to some debate, but I do not believe that any copyright should last more than approximately a generation, which would allow future generations the ability to reimagine a work.

I'm not sure why you think my plan doesn't provide meaningful distribution rights in people's works. After all, would you say that the founder's copyright provided no meaningful rights? My copyright scheme actually provides more protection than the original copyright act.

Permalink to Comment

17. Joseph Pietro Riolo on June 15, 2004 7:24 PM writes...


To Brad Hutchings,

I was born in the U.S. and currently live in Pennsylvania. Except for few days in Canada and Mexico, I am in the U.S. almost all of my life. Right-of-way is a very old legal concept that goes way back to colonial times and maybe much earlier.

Right-of-way is a legal right of passage over a private property. This is not like trespassing as shown by your example of solicitors destroying your garden. Several examples of right-of-way are sidewalk, public road, natural gas pipe, water pipe, sewage pipe, telephone line, electric line, cable line, and so on. All of them need to cross your private property. My property does not have a sidewalk but I must allow people to have a path along the edge of my property so that they can walk from one boundary to next boundary. I can't call police to prevent them from walking over my private property.

Finally, you don't have any legal rights to destroy the right-of-way. You can't simply dig up natural gas pipe and explode it. You can't put a valve on the underground water pipe to stop water from flowing. You can't simply convert a cement sidewalk into coal-burning sidewalk.

If authors and artists misuse DRM or any means to prevent the users from exercising even very basic fair use, don't you think that the authors and artists should be punished for destroying the "right-of-way" communication or don't you think that the users should have the power to defeat their DRM or any of their means to establish the "right-of-way" communication?


Joseph Pietro Riolo
<riolo@voicenet.com>

Public domain notice: I put all of my expressions in this comment in the public domain.

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