Comments on: this is the constitution on DRM http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/ Blog, news, books Wed, 08 Feb 2017 10:59:00 +0000 hourly 1 http://wordpress.org/?v=3.8.2 By: Abiyeler http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4708 Tue, 12 Aug 2008 14:24:59 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4708 I don’t know which ruling you are talking about from
the Second Circuit Court of Appeals. I assume that
you are talking about the ruling against 2600. If so,
everyone knows that the purpose of the program as
provided by 2600 is to infringe copyrights.

Good

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By: dolan http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4707 Wed, 07 Jul 2004 18:14:54 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4707 I know of a technology that can be used to circumvent… a keyboard. I’m fairly certain that it’s sole purpose was to circumvent the DMCA, and it should be outlawed immediately.

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By: William Wilson http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4706 Mon, 05 Jul 2004 12:35:25 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4706 Seems to me the proper thing to do would be to spend a little time, create a PDF file of the Constitution, Declaration of Independence, etc. and make it available everywhere–email it to friends, colleagues, Amazon.com employees, et al.

Plus, the PDF file would be Mac OS compatible!

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By: Joseph Pietro Riolo http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4705 Thu, 01 Jul 2004 21:03:07 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4705 Responding to Justin’s comment:

As I explained before, each technology can be used in
legal and illegal ways. Just because a technology
can be used in illegal ways to infringe someone’s
copyright does not mean that it is outlawed for every
use.

I don’t think that you interpret the DCMA correctly.
It only has effect on the works that still have
copyright. DCMA is totally nothing when it comes
to the public domain works. If I write a program
that breaks the encryption method X in your example,
I must take some additional steps to ensure that
the program will not be used primarily to infringe
copyrights. One way to do this is not to release
the code to the wide public in the same way as
the locksmith does not make his tools available to
all people.

I don’t know which ruling you are talking about from
the Second Circuit Court of Appeals. I assume that
you are talking about the ruling against 2600. If so,
everyone knows that the purpose of the program as
provided by 2600 is to infringe copyrights.

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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By: Justin http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4704 Thu, 01 Jul 2004 14:46:49 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4704 A few people have pointed out that it’s legal to break the encryption that protects a work in the public domain. This assumes, however, that that particular method only protects work in the public domain.

  • Work A is in the public domain.
  • Work A is protected by encryption method X.
  • Therefore it should be legal to break X. But …
  • Work B is not in the public domain.
  • Work B is protected by encryption method X.
  • Therefore it is not legal to break X, or do any of the things the DMCA forbids, since if you broke X, you’d be able to get at B.

I see the DMCA as the digital equivalent of demanding that car manuafacturers will be liable for the accidents their customers cause, unless the car manufacturer put a speed governor in each car. It’s also illegal to tamper with the speed governor, but you are allowed to tamper with the governor for vintage cars not capable of going above the set speed. The problem is if the same governor is used in modern cars, it’ll still illegal.

And, showing their true colors, the Second Circuit Court of Appeals has ruled that the speed governor thing is fine, since you are still capable of getting your car above the governed speed; for example, you can drop it out of a C130 transport plane from 20,000 ft. Just because the law says you can get up to speed, you don’t have a right to obtain that speed in the desired direction.

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By: Jimby http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4703 Thu, 01 Jul 2004 13:09:03 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4703 Thanks to this blog entry, many of my European friends now believe that printing a private copy of the U.S. constitution is illegal.

Just in case any reasonable person had doubts, printing the U.S. constitution is *not* illegal. The text of the constitution can be found on the internet and in almost any encyclopedia, American history textbook, or standard book on American government.

No one “owns” the constitution. The document was written many years before standard copyright law existed.

The reason why it sometimes costs money to obtain a copy is that someone went to the trouble of typing it up and printing it (or placing it on line). Unless one is a volunteer, labor is not free, and neither is paper. The costs involved are compensation for the labor and materials involved, not compensation for access to the intellectual property. Even when the U.S. Government Printing Office prints something, it costs something. Paper and labor are free for Uncle Sam.

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By: Joseph Pietro Riolo http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4702 Sat, 26 Jun 2004 00:11:26 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4702 Responding to Tom’s comment:

I don’t think that you got the beach analogy
correctly. In the original analogy, beach is
public property which means that there is no
ownership in beach, just like the public domain.
But, as the analogy continues, the access
routes to the beach are privately owned. The
only thing that is analogous to privately owned
access routes is license that can specify how
a person can access and use the public domain
works. The U.S. copyright law does not grant
any private ownership in the access to the
public domain works. Only the contract law can
do that and it is effective only between parties
that agree to the terms and conditions.

You have a point that I go too far in using gun
and medicine as examples where documentation,
control, and tracking system is used. These are
not the only ones that I have in my mind. Other
examples are student files that are kept in
school, medical files in doctor’s office, financial
records in bank, legal documents in lawyer’s
office, and so on. All of them need a system
where documentation can be kept, control against
illegal uses is effective, and documents or things
can be tracked.

Don’t blame me for being too cautious for using
technologies to break protection system to copy
the public domain works. The infringers are
largely responsible for casting bad light on the
legitimate uses of technologies to break protection
system.

Responding to Paul Hartzog’s comment:

If you look at different blog items in the category
under “Just Plain Silly”, some are quite serious.

Will Fuller who asked you the question apparently
does not understand the meaning of the public domain.
Any work that is in the public domain remains in
that status forever unless changed by law. If he
means that he wants the public domain to be totally
free of constraints, he needs to attack the
contract law that includes license.

Also, you do not apparently understand the meaning
of the public domain. Without protections, the
public domain truly flourish, like the ancient
times where there is no intellectual property rights.
With protections, the public domain stops growing
- it never vanish as you stated. That is why GPL
and some Creative Commons licenses are never
considered as pro-public domain. They are always
pro-copyright because they rely on protections as
provided by copyright and contract law to protect
the exclusive rights in copyrighted works and the
terms and conditions in license or contract.

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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By: Paul Hartzog http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4701 Fri, 25 Jun 2004 16:31:50 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4701 Cory blogged this over at boingboing, too

http://www.boingboing.net/2004/06/24/drmed_constitution_m.html

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By: Paul Hartzog http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4700 Fri, 25 Jun 2004 16:16:06 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4700 First, you’ll notice that L posted this in Just Plain Silly so lighten up.

Second, as Will Fuller (the person who pointed out the link to me before I passed it on to L) asked me yesterday:

Why isn’t there some way to ‘copyright’ a document so that it stays firmly in the public domain and cannot under any circumstances be expropriated for private use/distribution (DRM, etc.)?

Well, there is. Try Creative Commons licensing, or the GPL. Without protections our public domain will vanish as it is already doing. Just because you can DRM the constitution doesn’t mean you should.

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By: Tom http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4699 Fri, 25 Jun 2004 15:45:05 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4699 Joseph Pietro Riolo:

(Your analogy of beach would work with the concept of license – people can control access to and uses on the public domain works through license.)

On the contrary, the beach analogy presumes rightful ownership. If someone else owns the beach, windsurfing may not be an option.

The key in making and selling guns is to have a good documentation, control, and tracking system. We can apply the same idea to the technologies that are designed to break protection systems to copy the public domain works. The same idea is used in making and selling medicine.

Guns and medicines are so regulated because they can kill. Equating copyright infringement to homicide is quite a stretch.

If a person desires to break DRM in order to copy a public domain work but does not now how to write code or make equipment, he can hire someone to write code or make equipment…. Once the use is accomplished, lock up the technology for future uses or destroy it.

Nothing promotes the progress of science and useful arts quite like fees, locks, and destruction.

Other way is to teach the person how to write code or make equipment.

So long as one doesn’t teach by example, apparently.

The abuse of technologies to break protection systems has greatly hurt the legitimate uses of the same technologies but that does not change the fact that there is nothing illegal in using technology to break DRM to copy public domain works.

Never mind practicality; it works on paper.

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By: Brendon J. Wilson http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4698 Fri, 25 Jun 2004 15:33:31 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4698 There is, of course, a very simply way around this: create your own non-DRMed version!

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By: Alex http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4697 Fri, 25 Jun 2004 14:49:30 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4697 “Yes, it�s legal under the DMCA to break the DRM here so the
work can be printed and viewed on other computers, since
the underlying work is not copyrighted. But how would people do this in practice? Unless they have the talent and patience to write the DRM-breaking code themselves from scratch, which very few people do, they�d have to obtain the code from somewhere else, and since the same code that breaks the DRM on this document can also be used to break the DRM on copyrighted works, they collide with the �anti-trafficking� provision of the DMCA.

At least that explanation and the expansion of it that Mr. Riolo provides makes sense and provides some food for thought. Thanks to you both.

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By: Joseph Pietro Riolo http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4696 Fri, 25 Jun 2004 11:14:50 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4696 Commenting on John Mark Ockerbloom’s comment:

Your analogy of beach is not quite right. (Your
analogy of beach would work with the concept of
license – people can control access to and uses
on the public domain works through license.) I
would suggest gun as an analogy. Guns could be
used in legal and illegal ways. The key in making
and selling guns is to have a good documentation,
control, and tracking system. We can apply the
same idea to the technologies that are designed
to break protection systems to copy the public
domain works. The same idea is used in making
and selling medicine.

If a person desires to break DRM in order to copy
a public domain work but does not now how to write
code or make equipment, he can hire someone to
write code or make equipment. Both he and the
maker of technology should have all documentations
to record their activities. That way, whenever
they are sued, they can present the documentations
to a court. Once the use is accomplished, lock
up the technology for future uses or destroy it.
Other way is to teach the person how to write code
or make equipment.

The abuse of technologies to break protection
systems has greatly hurt the legitimate uses of
the same technologies but that does not change
the fact that there is nothing illegal in using
technology to break DRM to copy public domain
works.

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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By: Alex http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4695 Fri, 25 Jun 2004 05:20:50 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4695 Wow, what a Shock! Lessig has given us another startling revelation about how Microsoft and the U.S. Government are trying to rob us.

Of course, you can also buy the following books, in print form from Amazon:

The Constitution and the Declaration of Independence: $4.95
http://www.amazon.com/exec/obidos/tg/detail/-/1882577981/qid=1088147612/sr=8-1/ref=pd_ka_1/103-0232153-8071043?v=glance&s=books&n=507846

The Anti-Federalist Papers: $7.95
http://www.amazon.com/exec/obidos/tg/detail/-/1882577981/qid=1088147612/sr=8-1/ref=pd_ka_1/103-0232153-8071043?v=glance&s=books&n=507846

And one published by the U.S. Government also:
2003 Guide to Federal Grants and Government Assistance to Small Business – Catalog of Federal Domestic Assistance, Loans, Grants, Surplus Equipment, SBA, GSA, SEC Information for Entrepreneurs, Startup Kit, Loan Programs, Financing, Law, Regulations, Reports, Workbooks – Applying for Federal Assistance (CD-ROM)

http://www.amazon.com/exec/obidos/tg/detail/-/1592480691/qid=1088147871/sr=1-6/ref=sr_1_6/103-0232153-8071043?v=glance&s=books

What’s his point?

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By: Some Guy http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4694 Fri, 25 Jun 2004 03:46:58 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4694 Don’t sweat the rankings; those are ebook rankings only (and, ahem, it ain’t hard to shoot to the top, ebookwise)… like comparing your book sales to jewelry.

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By: Seth Finkelstein http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4693 Fri, 25 Jun 2004 01:58:09 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4693 Maybe “hack the code” meant 1201(b)(1)

Circumvention of control that “protects a right” (rather than *access*) is OK.

But to “manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof” that “protect a right” is a violation, 1201(b)(1)

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By: Joseph Pietro Riolo http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4692 Thu, 24 Jun 2004 23:51:36 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4692 Responding to Nate’s comment:

When you have time, spend few minutes reading Chapter 12 in
the U.S. copyright law. Note the phrase “a work protected
under this title” in Section 1201(a). Because the public
domain works are not protected or no longer protected by
the U.S. copyright law, DMCA therefore does not apply to
them.

Question #1:

There is no proprietary format although the creators
of formats will disagree with me. All formats are
uncopyrightable as per Section 102(b) (“any idea,
procedure, process, system, method of operation, concept,
principle, or discovery”). No matter what format a
a public domain work appears in, it is always public
domain. There is nothing that can turn it into
a copyrighted work except by law. There are some
formats that may be patented but that is a separate
topic.

Suppose an artist add ornaments to each letter in the
Constitution. He/she has copyright only in the ornaments
but never in the letters in the Constitution. One can
copy the letters but not the ornaments.

Question #2:

That is a very difficult question to answer because
each technology can be used for both legal and illegal
purposes. If a technology to break protection system
can be shown to be used in the legal way, it should be
okay. But, most of the technologies to break protection
system are used for infringing activities.

For additional insight from the U.S. Copyright Office,
take a look at pages 99 to 102 in:

http://www.copyright.gov/1201/docs/registers-recommendation.pdf

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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By: nate http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4691 Thu, 24 Jun 2004 22:59:52 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4691 > There is no law against breaking DRM to copy the public
> domain work. However, if there are creative additions
> to the electronic version that rise to copyrightable
> level, the story is different.

Joseph,

Could you clarify this? I’m no expert on the DMCA, but your statement certainly runs counter to most of the coverage of the DMCA that I’ve seen. I’m presuming that your point is that the DMCA makes illegal only the breaking of DRM used to control access to copyrighted works, and hence one can legally break DRM used to control access to a work in the public domain.

1) Is your caveat ever false? Wouldn’t simply presenting a public domain work in a proprietary format make it a copyrightable work?

2) If the maker of the DRM uses the same technology for the public domain work (small sliver) as for the copyrighted work (vast majority), wouldn’t the creation of a technology to break the DRM on the public domain work be prohibited because it “has limited commercially significant purpose or use other than to circumvent”?

(I haven’t actually read the act, only the summary: http://www.loc.gov/copyright/legislation/dmca.pdf)

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By: Boo_hiss http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4690 Thu, 24 Jun 2004 21:10:39 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4690 Joseph is right. I find it astounding that for all his ranting about the DMCA Lessig either hasn’t read it or doesn’t understand it. Read the fist sentence of the act.

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By: Anonymous http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4689 Thu, 24 Jun 2004 20:14:39 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4689 http://www.house.gov/Constitution/Constitution.html
http://www.house.gov/Constitution/Amend.html

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By: Joseph Pietro Riolo http://www.lessig.org/2004/06/this-is-the-constitution-on-dr/#comment-4688 Thu, 24 Jun 2004 19:56:59 +0000 http://lessig.org/blog/2004/06/this_is_the_constitution_on_dr.html#comment-4688 There is no law against breaking DRM to copy the public
domain work. However, if there are creative additions
to the electronic version that rise to copyrightable
level, the story is different.

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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