[d@DCC] Ending The Copyright Wars

From: Russell McOrmond <russell _-at-_ flora.ca>
To: Mark_Hachman (at) ziffdavis.com
Date: Mon, 11 Aug 2003 18:36:47 -0400 (EDT)

In reply to: http://www.extremetech.com/article2/0,3973,1213716,00.asp

  One missing piece of your discussion is a critical understanding of
technological protection measures (TPM) required for the currently
one-sided "digital rights management".

  As is discussed elsewhere, technology can be created that protects first
parties from third parties.  If I send a message to you, we can use
technological protection measures such as encryption so that someone other
than the two of us cannot intercept it and open it.  These technologies
haven't always been perfect, but they are improving all the time.


  Technology can not be created to protect one first party from the other
first party, no matter how many lobbiests pretend that this is the case.  
If I am the recipient of a message and receive the message intact, I can
then archive, duplicate, resend, or do whatever I want with the message.  
There is simply no technology that can ever change this as being able to
do these actions is a fundamental aspect of being a first party to the
conversation and has nothing to do with technology at all.

  If you tell me something, there is no technological mechanism to remove
that knowledge from my brain.  You may enact laws that disallow me from
legally sharing that knowledge from others, but these are legal and not
technological measures.

  What the industry is trying to do is take one of the first parties, the
recipient of the message, and turn them into a third party.  To do this
they need to disallow that first party to own technologies which allow
them to receive the message, and instead have proxy-technologies which
will only allow limited access to the message.  The message is never
received by the recipient, but only received by the proxy-technology which
the recipient does not control.

  Far from being a mechanism to protect digital rights, it is a mechanism
specifically designed to circumvent the digital rights of an otherwise
first party recipient of a message.  It circumvents their rights to
privacy by having technologies in their private homes that are not allowed
adequate scrutiny.  It circumvents their property rights by not allowing
them to actually own (and thus control) communications technology, but to
only access it under very restrictive one-sided terms.

  As possible creators of other works, it restricts their ability to
purchase technologies which would allow them enough control of the
technology to manipulate their own creations.  It must always be
remembered that the motion picture industry associations wanted to ban the
VCR, with one unintended (although I suspect intended) consequence being
that the current independant movie industry could never have formed.  The
required recording and editing technologies would have been under the
control of the legacy motion picture industry, which obviously would never
have licensed their use to independant competition.


  The same legacy industries have been proposing something called "Legal
protection for Technological Protection Measures" which was hastily, and
without adequate analysis, enacted in the USA's 1998 Digital Millennium
Copyright Act.  Far from being a legal protection of copyright, this is a
legal protection for a technologically determined replacement to
copyright.  The public policy, democratic and human rights implications
(including opening the door to protecting violations of article 19 of the
United Nations Declaration of Human Rights) are enormous.


  The copyright wars cannot be ended the way you propose as it doesn't
address the critical concerns.  Those in this debate need to do a
cost/benefit analysis of any proposals.  Not only is the jury out on
whether not-for-profit private-citizen sharing of works under copyright
hurts the creators (studies with music and software suggest it helps those
specific brands/labels), but the proposed solutions represent crimes of a
magnitude far greater than the worst-case-imaginings of the RIAA/BSA
lobbiests.


Note: I am very active in copyright reform in Canada, and can send more
information for a followup article if there is interest.

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Governance software that controls ICT, automates government policy, or
 electronically counts votes, shouldn't be bought any more than 
 politicians should be bought.  -- http://www.flora.ca/russell/

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