An open reply to Christopher Moore's BLOG article: Lessig on Control

An open reply to Christopher Moore's BLOG article: Lessig on Control.

We need to move beyond these misinterpretations of the debate as it is only going to keep the creator's rights community divided and conversations divisive. I've read nearly everything I could get on Lessig over the years, and as a software creator consider his thoughts in "Code and other laws of cyberspace" to be the most informative for software development of anything I have ever read.

Lessig is a hero for many creators.

Mr. Moore writes that Lessig has suggested "that if people say to hell with the law online, the law will surrender to them". While I have never read anything from Lessig that suggested this to me, I think Mr. Moore is making the common mistake of confusing respect for law generally with outdated law protecting very specialized business models that needs to be modernized as technology and business moves forward.

It is true that the non-commercial unauthorized P2P sharing of music on the Internet is currently unlawful in Canada (contrary to the musings of past heritage ministers that suggested otherwise). The same can be said of recorded music, commercial radio and cable television, and in each of these cases the law was modernized to deal with these issues. Rather than trying to make more things illegal and the law more complex (the 1996 WIPO path), causing further division between what laws are on the books and what the general public considers reasonable, we need to modernize the law.

People I have spoken with do not consider it reasonable that commercial radio and well paid cable companies only have to offer compensation for rebroadcasting music, movies and television shows, while the non-commercial sharing of these things by private citizens requires permission that is nearly never granted. While I know very few people who believe that the copyright holders shouldn't get paid, it should be obvious that making these payments for this non-commercial activity should be *at least* as easy as the system that monetized and legalized radio and cable television.

Lessig is not the only person who has lamented the legal pursuit of Napster, Kazaa and their ilk. I would suspect that if adequately polled you would find out that most musicians and other content creators are also in that camp, as well as most creators of technology. We live in a world that does not hold gun manufacturers responsible if a gun is used in the committing of a violent crime, so it baffles me why we should consider the manufacturers or service providers of technologies responsible when they are used by citizens commit much less serious crimes.

The Canadian Music Creators Coalition (CMCC), which I believe represents the views of a majority of Canadian musicians, also rages against record labels taking legal action against unauthorized sharing. They obviously are not doing this because they believe music should be free or because people should disregard the law, but because as business people they realize that this tactic will drive people away from paying creators. It is simply not a practical business technique, regardless of what the law says, to sue or threaten to sue your customers.

I found a greater diversity of ideas within the PWAC members that attended the conference earlier this month than what was seen in Heritage committee meetings, and far greater than the diversity of views I have seen published by eithor the Creators' Rights Alliance or the Creators' Copyright Coalition websites. In think the CRA and CCC risk alienating a growing number of creators by using the type of language that Mr. Moore has used on the CCC BLOG.

I'm not sure what controls currently under debate qualify as "controls that allow those who provide value to be rewarded for what they provide are fair, feasible and need not threaten a culture based on access"? The debate isn't about fair, feasible or reasonable controls, but those that are unfair, unreasonable and largely infeasible.

Questions for Mr Moore:

Would it be appropriate for me to suggest that you oppose the private ownership of communications technology? This is a technically correct interpretation of anyone who supports DRM: its use, its legalization and/or its legal protection. While technically correct, is that really what you meant to say, or would you consider that a misinterpretation of your ideas?

Knowing that DRM is the combination technical measures applied to content by copyright holders (not controversial) with technical measures applied to devices by other than their owners (the controversial part), do you support the placing of "digital locks" on devices without the informed consent of their owners?

What type of control do you believe you are asking for that are fair, feasible and reasonable that are being opposed by Lessig, myself, or others whose political views on cultural and technollgy policy differ from your own?

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"non-commercial unauthorized

"non-commercial unauthorized P2P sharing of music on the Internet is currently unlawful in Canada"

If it is, I have not seen anything to indicate as such.

"We live in a world that does not hold gun manufacturers responsible if a gun is used in the committing of a violent crime, so it baffles me why we should consider the manufacturers or service providers of technologies responsible when they are used by citizens commit much less serious crimes."

I agree with everything except the "crime" part! Call me old fashioned, but I still subscribe to the "romantic notion."

"Knowing that DRM is the combination technical measures applied to content by copyright holders (not controversial)"

I assert that this is also a controversial part. DRM is evil through and through; as far as I'm concerned, if you can break it, listen to it. Perhaps it comes from an inverted logic:

Original - If you shouldn't be doing something, invent a technology to stop it.

Inverted - If you can't invent a technology to stop it, you shouldn't expect people shouldn't do it.

"If it is, I have not seen

"If it is, I have not seen anything to indicate as such."

The copyright act says it is infringement. You don't need a successful court case as precedent to know whether something is infringement or not, although I would be quite happy if someone did have a successful case to end all the myths about this. I think the music industry as a whole is being hurt in Canada by the major mistakes that BMG/etc (CRIA members) made in those court cases!

There may be confusion as to who is infringing copyright (Given the whole "at a time chosen by the recipient" timing issue with a communication by telecommunications - the only useful aspect of "making available" ), but not whether there is infringement.

People have confused the private copying regime (the levy on CD's/etc) as making unauthorized *sharing* OK, but the regime clearly indicates that if the copy is redistributed or send via communications then it wasn't a private copy. This regime does suggest unauthorized downloading of music is not an infringement, but this is not the same as saying that unauthorized sending/sharing is not infringement.

Read: Subsection 80(2) of the Canadian Copyright Act

(2) Subsection (1) does not apply if the act described in that subsection is done for the purpose of doing any of the following in relation to any of the things referred to in paragraphs (1)(a) to (c):

(a) selling or renting out, or by way of trade exposing or offering for sale or rental;
(b) distributing, whether or not for the purpose of trade;
(c) communicating to the public by telecommunication; or
(d) performing, or causing to be performed, in public.

80(2)(b) says that giving copies of your "private copy" CDs to someone else is an infringement.

80(2)(c) says that communicating a "private copy" of music online (uploading, sharing) would be an infringement

...etc...

This is all just a legalistic way of clarifyting that a "private copy" is no longer considered a private copy if you do something public with it.

Note: This is important to realize to see the political dynamic in the copyright debate. CRIA members lost the federal court not because of "problems" in the Canadian copyright act, but because they provided inadequate evidence of infringing activities (IE: they didn't even download and listen to a song to provide evidence of who the copyright holder of a song was). CRIA and others have been falsely claiming based on this that they don't have the ability to sue unauthorized P2P sharing, but there is no more evidence of that any other copyright holder claiming the current act doesn't allow them to sue.

"I assert that this is also a controversial part. DRM is evil through and through; as far as I'm concerned, if you can break it, listen to it."

I don't consider a digital lock only on content to be DRM, but to be the use of a technical measure to protect the privacy or identity of a communication: in other words, to use technical measures as they were intended to be used.

DRM=Locked Content + Locked Device

How is placing a lock on content, requiring that intended audiences have the right keys (not devices with keys embedded -- that is a device issue), controversial?

In this environment you aren't technologically stopping copyright infringement (something technical measures can't do), but doing things such as requiring passwords/keys to access websites or downloaded content, or using P2P to distribute large locked files that then have smaller keys that are distributed to authorized customers.

When I use GPG/PGP to send a message to someone, I'm using a technical measure on the content. If I am the copyright holder of the content, then that is one of many examples of what we are talking about.

Anyone with a key (an authorized recipient) can always infringe copyright (IE: they have the technical ability to do so), but using technical measures on the content reduces your potential infringers to only those who are authorized to have keys (assuming your technical measure is strong -- you have already written about open algorithms and strong crypto keeping the message only available to those with keys).

All the controversial issues with DRM relating to privacy, compatibility, etc relate to technical measures applied to the device by a non-owner, not a technical measure applied to content by the copyright holder.

While this may seem obvious to a crypto person, it is not obvious to the general public that those opposed to DRM aren't saying copyright holders can't use passwords, IPSEC, GPG/PGP or other such things to encapsulate their content, but that they can't tie the access of this content to the use of a device which they have also applied a technical measure to.

Give me an example of a problem with DRM, or an example of DRM, and I'll explain how the root of the problem is a technical measure on a DEVICE and not a technical measure on CONTENT.


Free/Libre and Open Source Software (FLOSS) consultant.

Digital locks cannot stop copying, and law should reflect that.

I realize there's the legal dichotomy between locking content and locking devices. But from the consumer standpoint, there is not.

If you can hear it, you can copy it. If you can copy it, you can distribute it. "Digital locks" are castles made of sand, regardless of where or how they're applied, and the law should reflect that.

>>using technical measures on the content reduces your potential >>infringers

All it takes is one person, then anyone can get it.

I don't agree with the PGP analogy, because one's motivation for using encrypted email is because they believe the recipient wishes to keep the communication private. You wouldn't even waste one clock cycle on modular arithmetic if you were convinced with certainty the recipient(s) had absolutely no desire to keep your message to themselves.

So placing a "digital lock" on content is also a waste because the recipients (aka consumer) have no desire to keep it to themselves. If one person gets it; everyone gets it. Digital locks cannot stop copying and the law should reflect that .

In effect, there is no such thing as a "digital lock."

>80(2)(b) says that giving copies of your "private copy" CDs to someone >else is an infringement.

What about "lending"? You said it's fine for the library to lend me the CD, and fine for me to copy it before I give it back. Besides, what does "giving" a copy mean? Clearly giving your private CD away is ok, otherwise 2nd hand record shops wouldn't exist.

80(2)(c) says that communicating a "private copy" of music online (uploading, sharing) would be an infringement

Well I don't see any way to stop people from online sharing, and the law ought to reflect that. It's like prohibition. They tried to get people to stop drinking and failed.

Why? because pirating music, like brewing booze is socially acceptable, highly desirable, easy to do, and impossible to stop. Any law that tries to counter factors like that will fail in its purpose.

RE: "What about "lending"?

RE: "What about "lending"? You said it's fine for the library to lend me the CD, and fine for me to copy it before I give it back. Besides, what does "giving" a copy mean? Clearly giving your private CD away is ok, otherwise 2nd hand record shops wouldn't exist."

All these examples transfer control of the physical artifact. Compare this to theft. If I run off with your wallet at the pub, you won't be able to pay your bill. Likewise for lending: when I lend a DVD to someone, I expect it back. From the original seller's perspective, only one of the two parties can watch the DVD at any given time.

RE: "Well I don't see any way to stop people from online sharing, and the law ought to reflect that. It's like prohibition. They tried to get people to stop drinking and failed."

DRM "laws" would be exactly like prohibition with the added bonus that the non-prohibited jurisdications would only have to be "network connected" to the prohibiting state in order for users to gain access. Instead of Canadian whisky flowing into New York, it'll be Chinese DVDs.

RE: "Why? because pirating music, like brewing booze is socially acceptable, highly desirable, easy to do, and impossible to stop. Any law that tries to counter factors like that will fail in its purpose."

Exactly! Laws are meant to encode the social requirements of the majority of citizens (the conventions we all agree to follow). Unfortunately, there's still the issue of whether the government might "do what's best for us" and listen to media cartels who claim "loss of income affecting Canadian employment".

Russell's questions

I have been slow in responding to Russell's questions of May 25 to me partly because I’m just old and slow. I rarely try to think at the speed of cyberspace. But mostly I’ve been puzzling over what Russell’s questions have to do with my comment. I thought I made a modest observation about an inconsistency, or possibly an evolution, in Professor Lessig’s legal thought. Russell responds with challenges about my views on Digital Rights Management.

Russell’s questions are: "Would it be appropriate for me to suggest that you oppose the private ownership of communications technology? This is a technically correct interpretation of anyone who supports DRM: its use, its legalization and/or its legal protection. While technically correct, is that really what you meant to say, or would you consider that a misinterpretation of your ideas?

"Knowing that DRM is the combination technical measures applied to content by copyright holders (not controversial) with technical measures applied to devices by other than their owners (the controversial part), do you support the placing of "digital locks" on devices without the informed consent of their owners?

"What type of control do you believe you are asking for that are fair, feasible and reasonable that are being opposed by Lessig, myself, or others whose political views on cultural and technology policy differ from your own?"

Well, since he asks: I’m not very interested in DRM. I don’t see DRM as being very useful to most creators. Apart from the legal conundrums, I suspect DRM mostly leads us all into endless technological escalation that creators cannot afford. In general, I share Russell's sense that DRM may have some use to control content, not to control devices.

Even for content, I prefer licensing solutions, which seem to me more flexible and less of a threat to access. I think access should be easy, and at the same time anyone making copyright material publicly available should expect some kind of licensing. Licensing seems to me more flexible than technology-based blocking measures, more negotiable, more able to zero-rate where appropriate (eg, to recognize public domain, fair dealing, private use) and generally friendlier to access, while still preserving the principle that those who contribute value should have some opportunity to be rewarded proportionally by users.

That said, I can see why DRM has traction. First, we need international copyright standards, which suggests we need to be WIPO-compliant, which seems to require some protection for DRM, even if I’m not keen on DRM as a solution in itself. Second, I understand that, in the absence of and opposition to comprehensive licensing solutions, producers and publishers fall back on DRM in an effort to protect their investments. If we can’t combine general access with licensing where appropriate, then we have to expect some rightsholders will respond with efforts to create artificial scarcity through technology.

Again, I think Russell’s questions respond to his concerns and interests rather than to any point I was addressing, but if this helps at all, I’ll be glad.

Moore on Lessig

Chris,

Thank you for the reply.

To again quote your original article:

"The law professor has always seemed to accept that if people say to hell with the law online, the law will surrender to them."

Can you give me a reference to somewhere that Lessig has said or indirectly suggested this?

Since I have never read Lessig suggest this, I made a guess at what you were referring to and guessed that you were talking about the legality of non-commercial unauthorized P2P sharing. You are now suggesting that my guess was wrong, so I suspect it is better for me to stop guessing and to instead ask for a reference so I'll know what of what Lessig has written you were thinking of. Once we are all talking about the same quote we can discuss possibly different interpretations.

We often have problems in discussions as we use language in very different ways. As an example, when I use the term "licensing" I mean it in the case where a copyright holder chooses a license agreement that best suits their chosen business (mirrors the method of production, distribution and funding they are using). An example of this would be the use of Creative Commons licenses or the various FLOSS licenses. Copyright holders should also have a choice to decide to join a collective and have royalties collected on their behalf for specific works. This makes a collective society a "one stop shopping" system for those creators who believe that collecting royalties is an appropriate business model for them.

The way you appear to use the term suggests situations where freedom of choice is taken away from the author, such as extended of statutory licensing. Access Copyright also seems to offer users of works an indemnification insurance such that copyright holders are forced to sue Access Copyright when their works are infringed, rather than the infringer. You also claim that collective licensing is easier to zero-rate when appropriate, but we already know this isn't the case given the current battle over educational use of the public part of the Internet. Most people who have tried to speak at Copyright Board hearings have indicated it is an extremely resource intensive undertaking, where the collectives are favoured over those who are trying to document alternative viewpoints.

I believe these types of licensing have their place in extreme circumstances, for instance for the unauthorized sharing of recorded music, movies and television). I also believe that this type of imposed licensing is extremely harmful in marketplaces where there is competition between a variety of methods of production, distribution and funding. The vast majority of works that Access Copyright licenses (as one example, and the one you are most familiar with as a board member) are works where there is no market failure, and where Open Access and other competitive business models are growing. I'm told that the educational sector is currently the largest customer of Access Copyright, with the educational sector also being one of the fastest growing Open Access markets which forms one of the greatest competitors to the Access Copyright administered licensing models.

I am curious if you have followed any of the discussions I have had with John Degen. When we met together in March we hashed out what became PWAC's four core principles essential for the ongoing copyright reform. One of those principles was a need to recognize that there is a "full spectrum of methods of production, distribution and funding of creativity".

Collective licensing, when voluntary, is an expression of one of those choices for creators. When it is not voluntary it is an attack on an authors right to choose their own method of production, distribution and funding.

Please clarify your use of the term "licensing", and whether you mean voluntary licensing. If you mean extended or collective, I am wondering why you disrespect the right of authors to make their own choices?

Note: I disagree with any claim that Canada is obligated to ratify the 1996 WIPO treaties. It is amusing to suggest Canada is obligated to ratify this treaty when our closes trading partner hasn't even ratified the treaties which created the International Court of Justice or the International Criminal Court, or a whole host of far more important treaties than WIPO.

Canada can offer a leadership roll by skipping the 1996 treaties and moving to where countries will eventually move of rational copyright that protects the interests of authors and audiences (rather than attacks them, which is what the 1996 treaties did). I can't see that the 1996 treaties will survive long-term given many jurisdictions are questioning the "logic" behind these treaties. Even Hilary Rosen, one of the strongest proponents of the "logic" of the treaties in the USA at the time, has now recognized that much of the thinking was wrong.

More licensing

I was probably thinking of the Business Week interview with Prof Lessig from summer 2005, still on his homepage at lessig.org last time I looked, in which he called the US Supreme Court ruling against Grokster “a pretty significant defeat.” Maybe you were too.

When Grokster thought it was immune to consequences, the rhetoric of its spokespeople was entirely outlaw/pirate. The Supremes' view that when a technology is offered “with the object of promoting its use to infringe copyright,” the victims have a valid claim against those distributing the technology -- that seems reasonable to me. I thought – think – Lessig’s nostalgia for that era suggested the way his vigorously stated support for copyright-in-principle can sometime flag at about the point when practical suggestions for copyright administration are offered.

That the Groksters are giving way to licenced download processes suggests there has been no locking down of the culture, no interdicting of technological progress, not a significant defeat at all. It was making large amounts of copyright material generally available; it needed a licensing solution. Licensing seems better to me.

Your suggestion that Canada should defy the world on copyright because the US rejects the ICC sounds more like a debating game than a serious point. On that logic, you would support DMCA and constant extensions of copyright terms!

I know voluntary licensing sounds good. It has that libertarian ring. But if it's all voluntary on all sides, we fall back into permission culture: you have to ask. I'm an orthodox Lessigian on the problems with that. And for lots of creators I know, seeking out permissions and being held to ransom on price is a key place where copyright isn't working. And unworkable systems collapse.

Rightsholders need to be reasonable, and that means backing away from absolute control. "Voluntary" sounds good, but in practice it may just mean "inaccessible, unworkable." Collective licensing systems do indeed create markets, contrary to your suggestion, and that's good all around.