August 17, 2005  ·  Hilary Rosen

The comments have been reallly interesting.

I love the Warhol Campbell Soup example. I wonder if Campbell’s would sue him today. doubt it. in fact that is what is always so fascinating. the amount of people who face legal consequences for things like samples or parodies is so miniscule compared to the amount of their use. Music sample lawsuits, for example are really only done by successful artists against successful artists because it just isn’t worth it to pursue. Every once in awhile “artistic integrity” comes into play, but rarely.

Public Enemy was genius. Did they lose their mojo because they stopped sampling?

I’m impressed with the balance and thoughts expressed in the comments.

One thing that Larry and I have always agreed on is that the licensing systems for all copyright owners are often antiquated and unresponsive to today’s needs. While most copyright owners with a significant investment in work have made great strides in addressing this issue, there are so many small owners who are either regularly unavailable or not willing to use collective licensing (when it is available) As I have learned over the years, it is particularly difficult in the academic and research settings where university or grant policies often require licenses that are impossible to get or even impossible to trace ownership. That is a very good and important set of examples.

One more bit of info before I head to the beach today – relevant to the Fox News example. I believe the following story is little known.

1988. It is 2:30 in the morning. I am sitting in the House Commerce Committee room with four or five congressional staffers and only three or four lobbyists/lawyers. The final mark-up for the DMCA is the next morning in the Full Commerce Committee. The Bill had already passed out of the Judiciary Committee but it had a sequential referral to Commerce which needed to approve it before we went to the floor for House Passage. And we were hung up. Hung up on the very issue you raised. What would happen when legitimate fair use needs arose and the required content wasn’t available in upprotected formats? While we knew it wasn’t a “dreamers” issue and that technology was moving rapidly enough that protected content could be a reality quite soon, it wasn’t yet at the time. And several of us, including most importantly by that time, the Committee Chairman who had heretofore been opposed to the Bill, wanted to get it done.

So, I pulled out a long used legislative tactic and suggested we put a “study” in the statute. That we empower the Copyright Office to do a regular study on the impact of the law on fair use and the accessibility of works. The tech lobbyist and committee staffer suggested the C.O. was too pro-copyright owners and suggested that the Commerce Department have a role in the study as well. We got a Bill passed the next day.

So, the example you raise, is just the sort of thing that the law envisions be monitored thoughtfully. One such study has already been done and found no adverse impact to date on Fair use. They will keep going.

  • http://gnuosphere.blogspot.com Peter Rock

    Hilary,

    Will you be responding directly to any comments within the threads or will you simply be in lecture mode and stick to top-level posts the entire visit? I hope not as that would defeat the beauty of blogging…

    Anyway, still curious if you read “Promises to Keep” and what you think of the idea of artists and consumers taking control of creations whilst using an attribution right and the Internet to trade, track, and count files in an automated compensation system.

    No more costly middle man. That is, no more RIAA or MPAA – or at least, a wholly different meaning and purpose for those organizations. They would then become organizations with a mission to actually help artists as a whole – which they have not done at all. They have simply made a small minority rich and placed billions into the pockets of the organization’s leaders and shareholders.

  • http://www.ibiblio.org/studioforrecording/ Tom Poe

    Peter: Hilary doesn’t respond to “little people”. She’s a policy maker. Her role is to decide how the world should look. That role requires she not engage in discussion of issues outside of those “selected” for the final cut process. Fair Use issues quickly lead to “Promises To Keep” thinking, and that threatens to shift economics drastically away from obsolete corporations, as does anything remotely akin to technology advances.

    I loved her rationalization of avoiding Fair Use with the brilliant (in her mind) logic pursued by WIPO’s Bruce Lehman back in 1994 (or before?). Eliminate Fair Use and in its place, initiate study after study about impact, as a token gesture.

  • AxCx

    you mean 1998?

  • rodander

    Ms. Rosen alludes to the point that much of the problem is a market problem rather than a legal problem, which I think is exactly right. How much revenue are copyright owners foregoing by the current “licensing systems”? I’m guessing quite a bit. Much revenue is also lost, I suspect, because of copyright owners overvaluing their rights. A better rights marketplace, with reduced transaction costs and more data on which prices can be set, would appear to address this. And address it better, IMHO, then nuking rights altogether (as many here appear to favor, or at least nuking rights from being owned by the unworthy such as “obsolete corporations”).

  • three blind mice

    Peter Rock, Tom Poe, may we remind you that Ms Rosen is a GUEST here and deserves to be treated accordingly. show a little respect. (we would also like to point out that professor lessig very rarely participates in the threads he starts, and no one ever complains about it. not once has he responded directly to anything we have written and you don’t see us crying about it.)

    How much revenue are copyright owners foregoing by the current “licensing systems”? I’m guessing quite a bit.

    point well taken rodander, but clearly it’s not a uniform problem. jay kay, madonna, coldplay, and many other artists seem to be doing very well indeed under the existing market structure. brad pitt, tom hanks, sean penn, and johnny depp seem as well to have plenty of coin in their pockets.

    lesser artists remain poor under the current structure because… well… maybe they suck.

  • three blind mice

    Tom Poe, as a pedantic point of fact Bruce Lehman was assistant sec. of commerce between 1993 and 1998 and commissioner of patents and trademarks. Lehman never had any official responsibility for US copyrights. (the US copyright office is part of the library of congress.) he never worked for for WIPO, but served as the US delegate TO WIPO in 1996. if you’re going to slag him at least do so correctly.

    the Wikipedia has a (not surprisingly) biased, unflattering, and undeserving biography on him. it is worthless except for the dates.

  • http://www.ibiblio.org/studioforrecording/ Tom Poe

    Three Blind Mice: Who is the “we” and the “us” as if I or Peter is a “you” or “them”? Am I not part of the commentors group? What about Peter? Weird!

    AxCx asked if I meant 1998. Actually, I was referring to Bruce Lehman in his position as chairman for undertaking the task of the Green Paper on Cyberights in 1993. At that point, I believe, and correct me if I’m wrong, we saw the formal recommendation to eliminate “Fair Use” issues from existence. To those who squealed like stuck pigs, he threw out the old let’s go ahead, and in the interim, we’ll do a study on the matter of how to bring “Fair Use” provisions back into existence at some later time. [cynical me]

  • three blind mice

    Tom Poe, sorry for the confusion.

    the we is us and the us is we.

    we are three blind mice. a plural identity. yes, it is somewhat confusing, but it allows us to avoid gender specific pronouns, permits us to use the royal “we” while remaining lowly rodents, and is just a bit of on-line fun to remind us not to take ourselves too seriously. it also allows us to contradict ourselves whenever necessary! our opinions are based on a majority vote and there is rarely unanimous agreement. the swing vote is a particularly unreliable little mouse who drinks too much and works too late. the other two are however pretty consistent.

    yes, you are correct about Lehman’s involvement and his bad idea to throw out fair use and replace it with a let’s wait and see what happens study. we are all for fair use. it is an important and necessary and well-established part of copyright law. it does not exist in the statute without reason. fair use should not, however, subvert copyright law and that was what Lehman (he of little vision) had concluded.

    comparing it to the DMCA is a bit unfair. the DMCA was new legislation. it was not throwing out a long established principle. although we think the DMCA was a good and necessary idea.. it is a miserably written piece of legislation that well deserves an annual review… and a re-writing.

  • http://catamorphism.livejournal.com Kirsten Chevalier

    in fact that is what is always so fascinating. the amount of people who face legal consequences for things like samples or parodies is so miniscule compared to the amount of their use. Music sample lawsuits, for example are really only done by successful artists against successful artists because it just isn�t worth it to pursue.

    What? All you have to do is open Prof. Lessig’s _Free Culture_ for counterexamples to your claim. Besides, the fact that the threat of a lawsuit exists is enough to keep non-wealthy artists from using samples without permission. The chance of being sued may be miniscule, but a lawsuit would be devastating.

  • poptones

    “Fair use” is obsolete.

    What about your tax return? If I should stumble upon that while browsing kazaa, how much of your personal tax information should I be entitled to republish owing to “fair use?”

    Bits of data have real, tangible value. They don’t call the web “the personal media” for nothing; this is not just madonna and flavah flav we are talking about now…it’s your creations and my creations – pictures of your kids and home movies shared on personal web spaces. How much “fair usage right” of your personal space are you willing to give the next Michael Moore?

  • Erika

    poptones: Perhaps it is a limitation of the system, but it seems like we should not support overly zealous copyright laws just because they allow us to protect personal data such as tax returns and personal pictures. What we should do instead is refine the idea of “publication”. Things that are not meant to be consumed by others, things which have not been published should be protected because they are private and things that have been published should be protected under copyright. Such a distinction would allow the two domains to get the different types of protection which they deserve.

  • poptones

    A good suggestion on the surface, but how do we define what is “personal” and what is “public?” The point I am trying to convey here is that line is now very blurred for ALL of us. Are your browser cookies “personal?” The information in them is of no use to you, only to the websites you visit. In fact one could even argue the information in them doesn’t really even belong to you – it belongs to those who created it, and those who created it are those who wrote the code that ran when you clicked to their site and accepted the terms of use for their site. So if someone hijacks your computer and gobbles and resells all your cookies, who is infringed? Is it you? Is it the operators of those sites catalogged in your cookie folder? Since the data is to some large degree public is anyone’s privacy or secrecy even infringed?

    Various members of the EU have been setting about this tactic with privacy laws and yet they also end up deploying copyright laws that make our DMCA look like a communist approach by comparison.

    Consider the example of the kids again: you put up a website with pictures of your kids because you want to share their lives with other members of your family. So what if someone in your family passes along that clip of the 8 year old getting out of the bath to a friend who then posts it to usenet? Whose privacy has been violated? Who violated your privacy? It is a work you published yourself (because we ALL can do this now), so how do you prove harm?

    The DMCA allows you yourself to quickly, acting on your own behalf, demand immediate action. Privacy, trust – all that is irrelevant. All that you need prove is that it is your work and it is being distributed in a manner without your consent – end of story. You really think having to go to the police or a lawyer, file reports and affidavits and beg for someone to act for you is a better solution? By the time you get the laywer on the phone your kid’s video is being shared on e-donkey and no one can stop it.

    Of course, many of us feel the same way about our artistic creations that parents feel about their children. This is the basis for granting, in some cultures, “moral rights” on creative works. So “children” can in this example be literal or metaphorical, the point (and the reality) is the same.

    People must have the right to be unreasonable. To demand anything less is to demand we sacrifice our freedom of expression.

  • Erika

    So dividing the spheres creates difficulties. I do not see the problem with that since we have plenty of difficulties now, and this gets rid of a lot of them, in my opinion. I can think of a simplistic but probably salvagable solution to the labeling problem without much thought: something is published, protected under copyright, if you mark it as such. Otherwise, it is private. The picture scenario you bring up would be solved: it would be a private thing. Private things would be protected by stronger laws than things which are copyrighted but could not be used commercially.

    As for people feeling towards their art as they do towards their children, there is nothing keeping them from making their art private. The difference between private and published should not be ones feelings towards them but how they are used (is the difference between commercial property and the property you build your home on the way you “feel” about the land itself or how you use it?).

    And people do not really have the “right to be unreasonable”. They have rights, which they may use unreasonably, but that is not the same. Oh, and please, please stop trying to make your point with emotional “what if”s.

  • http://www.kosaraju.com/ajay/ Ajay K.

    Here’s a good example of free culture, especially the middle link for Grand Theft Submarine: http://home.comcast.net/%7Ebeefypapal/Pages/DFauntleroy.htm

    A nationally syndicated radio call-in show combined with hand-drawn animation and assorted sound clips.

  • AxCx

    Tom Poe, sorry for the confusion.
    I didn’t as you, I asked Hilary re her “story”. i didn’t even read your comment.

  • poptones

    The picture scenario you bring up would be solved: it would be a private thing.

    No, it isn’t. Because it was published on a website where the audience was – perhaps naively – intended to be limited to close friends and family. How can something be both “published” and “private?”

    These are not “emotional what ifs” these are very real scenarios. I have known a father who had to deal with exactly the situation described earlier. If you go to a usenet archive and search for “amanda” you will likely still find images of her being shared in forums that her father had never intended.

    And what about currency? DRM systems could finally allow us to have virtual atms in our own homes. No paying five or fifteen percent handling fees to the paypal and egold money changers, DRM and trusted computing platforms will bring these things into our homes. This isn’t an “if” it is a “when” and the laws need to be shaped in such a way that they protect everyone – even those without giant legal staffs. and for every intrusion you make into the property rights of Hollywood you weaken yourself just the same.

    And people do not really have the “right to be unreasonable”. They have rights, which they may use unreasonably, but that is not the same.

    If the law does not protect the people’s ability to act in a selfish and unreasonable manner, then the law has failed to protect their rights.

  • ACS

    “Fair use” is obsolete

    I agree to a certain extent.

    I am from Australia and as you may know we do not have an open-ended fair use defence to copyright infringement like our American cousins. Rather copyright defence is segmented so the purpose of the use is only protected if it falls within specific categories: research and review, comedy etc. The doctrine cannot be extended by judicial considerations in Australia beyond those categories (No Sony here thank you very much).

    I think the question of an open ended fair use doctrine can be put like this:-

    What specific standard is used to determine whether a potential infringement is ‘fair use’?

    Well the standard in s 107 of the Copyright Act (US) says there has to be some ‘fair use’ purpose but leaves this open to new categories then states that we must consider four key topics:-

    1. The purpose and the character of the use.
    2. The nature of the work
    3. The amount and proportion of copied work
    4. The effect upon the potential market.

    Now although this potential market may be different to the market debated above the relevance of the consideration would impact on the resulting decision in a similar way.

    So to Tom Poe & Rodander and Co

    Back off, market considerations and public policy are vital considerations to application of the Fair Use under the law. Take it up with your congressman.

    At the same time I note to poptones

    Fair use is vital and not obsolete. The limitation in the system is that it remains open ended and therefore open to further interpretations. The simple answer would be to get congress to make up thier minds about the true identity of fair use.

    So lets get to the nub of it:-

    Does Fair Use make the right of copyright devoid of value?

    No, the act envisages the monopoly itself being subject to policy considerations.

    Is there potential for the Fair Use doctrine to water down the monopoly granted under the Copyright Act?

    Yes, certainly an open ended exception that is continually tested may come up with interpretations that limit an authors ability to establish an infringement against persons that reproduce thier works.

    Does fair use cover reproduction by individuals?

    No, every infringement that is not subject to fair use is actionable. Furthermore, the system used to infringe may also be liable (IE Grokster).

    Now the biggie

    Does Copyright Law inhibit Free Culture?

    NO, Copyright law is a personal right which can be licenced or “waived”. Free culture is the sum of the copyright material which is subject to this licencing and “waiving” combined with the material that is subject to “Fair Use” or any other copyright defence.

    I do not see how this point is so hard to grasp. Why do you think you have a right to something that is not yours!!!!!

  • Corey

    “lesser artists remain poor under the current structure because… well… maybe they suck.”

    Oh come on, do we have to hasten the death of culture? You seem occasionally reasonable and I don’t want to believe that reasonable people equate artistic merit with ability to sell CDs en masse. It reeks of the fetishization of commodities. Do you want Marx to have been right?

    American Idol is a silly show but I think it proves once and for all that you can make anyone a pop star with sufficient marketing. I think that’s sad, but the attitude that good =profitable is exactly what enables it.

  • Corey

    “Music sample lawsuits, for example are really only done by successful artists against successful artists because it just isn’t worth it to pursue.”

    That isn’t an entirely fair picture. Successful artist’s lawyers might not have authorization to pursue full-scale litigation against every sampler, but they can certainly send out a form “cease and desist or face litigation” letter, billing 1/10th of an hour to their client for the time it takes to address the envelope.

    Those letters, in combination with the few highly publicized suits that DO get prosecuted, have just as much chilling effect on sampling as prosecuting every case to the full extent of the law would.

    The RIAA knows this tactic well, in fact, it seems to have been your strategy when you started suing “judgement proof” college students for p2p use. Those kids settled for the entire contents of their college fund, which was less than the RIAA’s legal costs I am sure. But having spent that money, you can now simply draft a threatening letter that refers to those cases and get the same effect for the price of a stamp.

    This isn’t an attack, I will admit for the purposes of this discussion that those people facilitated infringement, even though I strongly disagree with the severity of the individual punishments.

    But I think the same process works to discourage fair use. People stopping the practice of sampling or parody out of fear of injurious prosecution proves that they “face legal consequences” for fair use. Public Enemy DID lose some of their creative mojo when lawyers forced a change in their practiced style of expression. (Of course Flava Flav going off the deep end didn’t help either)

    I don’t want to be skeptical of the pull towards the middle exercised by the Commerce Department’s “role” in the study of fair use… but I just can’t help it. :)

  • three blind mice

    It reeks of the fetishization of commodities.

    Corey, certainly big media can, through marketing and promotion, create a “star” who does not really merit being a star. we totally agree with you – not everyone who rises to the top does not suck. it is, of course, something of a matter of taste. appeal to enough tastes and you create market value.

    but on the other side of the coin (and further to Erika’s and your comment about the “chilling effects”) you can’t measure what you don’t see. sure you can argue that copyright laws are “chilling” hot new talent, but since no one can ever prove or disprove it what’s the point? you see giants, we see windmills.

    as regards the discussion over tax returns, etc. this is in some ways a total derail. trade secrets and copyright are TWO different things. personal private information is not copyrighted, it is secret. there is no fair use when it comes to secrets. lumping them both into the “digital data” and trying to craft one-size-fits-all legislation to deal with “digital data” is destined to fail. miserably.

    “the internet” as a blind, deaf, and dumb transport layer is an unsustainable technology. get over it. the days of manifest destiny are coming to an end; it’s time to start stringing barbed wire. the OSI stack needs another layer – a legality layer – and the sooner the better.

  • poptones

    But if you put your own tax return in your kazaa “share this junk with the world” folder then how can you call it “secret?” If you open your wallet to the world it may still be illegal for us to remove the cash from it, but you cannot blame us for peering inside when it was you who held it open for inspection.

    Of course, in a properly designed system your tax return would have a file marker indicating it was not for broadcast. Or the machine itself would be smart enough to know “hey, this file is not supposed to appear on the kazaa file search index” and so it would keep that file both invisible and protected from unauthorized eyes even when the operator was too forgetful or ignorant (or malicious) to treat it otherwise.

    This is why my entire hard drive is encrypted. For a while I tried the “I’ll just encrypt this stuff” approach but when you do that it is far too easy to forget and drag this “bad” file over to the “good place.” In an instant all that encryption is for naught.

    It has taken Hollywood almost a decade to pressure the technology industries into putting some serious effort into making the personal computer “smart” enough to know the difference between a tax return and baby’s first steps – and to be able to act accordingly. If this had instead been left completely up to the John p barlows and the EFF we would still be waiting. I’n glad the EFF is there, but I’m not about to stand in the way of Hollywood’s drive to foster a technology that will create an entirely new paradigm for the way we think of “data.”

  • Corey

    “sure you can argue that copyright laws are “chilling” hot new talent, but since no one can ever prove or disprove it what’s the point? you see giants, we see windmills.”

    Back in the days before technocrats, people had less trouble relying on collective common sense in the absense of absolute proof either way. The question “what should we ideally incent?” can be answered via a number of methods, not the least of which would be a democratic inquiry into the values of the people in regard to which side to err on. Or if you prefer you could ask God.

    ““the internet” as a blind, deaf, and dumb transport layer is an unsustainable technology. get over it.”

    The internet sustained itself fine under the auspices of the military industrial complex, then it prospered under the trust of universities, then desperate politicians “invented” it, and still it grew, the pornographers, spammers and booksellers learned to exploit it… and now finally, as you indicate, it is the lawyers turn. Attempting to apply yet another cultural redefinition to the underlying technology. For what ends I wonder? You will excuse me perhaps if I don’t herald the coming of cryptofacism to the network we have all come to depend on for access to porn, consumer product info, and counter-factual wiki entries?

  • three blind mice

    corey, you give us the impression of someone who is awed by technology. as engineers, we approach this from the point of view that technology is a tool to serve mankind – it is not a God that mankind must bow before.

    “cryptofascism” dear sir can be as much a result of the hegemony of an uncontrolled technology over our lives as it can be a result of our attempts to control that technology. as george washington observed about fire, technology is a useful servant and a dangerous master.

    in a democracy only anarchists would want to see technology subvert the will of the majority.

    so put your guns away wild bill hickcock: civilisation is coming to the internet and there is nothing you can do to stop it.

  • http://www.linuxrising.org Christian

    TBM: Most democracies have built in mechanisms to make sure they do ‘subvert’ the will of the majority in order to protect the rights of the minorities. These measures range from demands for qualified majorities for many decisions, overrepresenation of smaller groups/areas (US Senate is an example of this) and many other variations. Unfortunatly the respect for diversity seems to be weakening in the world and some people seems to think that if you can claim 50,1 percent in favour for something it gives you a moral and legal right to do so. Which leads us to a situation where democracy might become a tool for the majority to supress the minority, which I guess is slightly better than the historic situation of a minority supressing the majority, but not a whole lot better. I think and hope a much wider group than anarchists wouldn’t mind technology playing a part in subverting the ability of the majority to become abusive.

    So mouseboy please stop confusing your Orwellian wetdreams with civilisation.

  • poptones

    in a democracy only anarchists would want to see technology subvert the will of the majority.

    And Poptones glances around nervously…

  • three blind mice

    Christian, ok, so that was obviously too complicated for you.

    let’s see if we can make it more simpler… why should the on-line community exist under a different legal regime than the real world?

    is there really any difference if your “rights” are taken away by a Republican majority or a failure in network design?

    the wet dream, x-tian, is one where the internet exists outside the realm of law. that is the situation today and you are in total denial if you a) think it is healthy or b) think it will continue for much longer.

  • three blind mice

    Christian, on review, our apologies. yes, we were a bit unclear.

    as poptones highlighted, we wrote:

    in a democracy only anarchists would want to see technology subvert the will of the majority.

    what we should have said is, in a democracy only anarchists would want to see technology subvert the rule of law.

  • poptones

    And despite the fact I am strongly defending Hollywood and DRM and wholeheartedly embrace a technological evolution the majority seems to greatly fear, I’m still sitting around the campfire singalong with the anarchists…

  • rodander

    Hey, ACS, why did you throw me under the same bus as Tom Poe regarding fair use?

    I really don’t have much of a problem with fair use as it is. (see my wrangling with Aaron in the previous thread). It seems too many here want to have fair use safe harbors that are defined in advance (no doubt, defined to cover exactly only their desired uses and nobody else’s). Having a court sort out fair use in difficult cases, based on those facts, is not a bad result, IMHO. Nor is it a bad thing to have a “use at your own risk” default if you use someone else’s work without permission.

    At the risk of being repetitiously redundant, my only point so far in this thread was that there appears to be a practical snag in the market system for some rights that keeps some buyers and sellers (licensors and licensees) apart and that gets in the way of supply/demand pricing for certain rights. In this day of worldwide instant communication and ebay commerce, one would think that an online licensing marketplace could spring up.

    But it is misguided to solve a problem of transaction logistics for conveying rights by eviscerating the rights themselves.

  • Fiepoto

    I don’t think that the debate is about whether or not the internet will or should be governed by laws….but of what type of laws. There seems to be two forms of production that are competing with one another….one that is based on rents and exclusion (the Garrett Hardin argument) and one based on a commons that is self healing (ala FOSS; see Yokai Benkler). They can co-exist, but in competition with one another. Such competition leads to strategic behaviour by those whose buisness models are threatened (proprietary software manufacturers, recording companies, the movie industry, etc.)

    When I look at legistlation such as the DMCA, the push for more patents by Microsoft or the statements from WIPO that ONLY favour stronger and more restricive copyright enforcement, I can’t but help but think that this fight is one sided and just a little biased.

  • http://gnuosphere.blogspot.com Peter Rock

    Tom Poe:

    Hilary doesn’t respond to “little people”. She’s a policy maker. Her role is to decide how the world should look. That role requires she not engage in discussion of issues outside of those “selected” for the final cut process.

    Hi Tom. I understand where you are coming from but my understanding was that Hilary was no longer working as a voice for the corporations. Therefore, I thought there was a chance that she – as a human being unencumbered by corporate directives – would address my question (or at least say “No, I haven’t read the book – not interested”). I realize there are some bigwigs out there who actually believe they are “big people” and pay little or no attention to “little people”, but I really have no idea about Hilary. I’ve never conversed with her and do not know her at all. She might not fit the bigwig category – I’d like to give her that chance and find out. Like I said, I wouldn’t have even bothered asking if she still worked for the RIAA as responding to my question in a positive manner could open her up for dismissal by the organization. Perhaps I’m living in a dream world, but I am quite impressed that she is on Lessig’s blog so I figured that – just maybe – she is slowly shedding her biases and old alliances and looking at the whole issue of digital file transmission with a whole new mind. Then again, I’m probably fooling myself if I think that just because Hilary doesn’t *officially* work for the RIAA anymore that she is completely free from their economic/political agendas. I guess we’ll see in time. Can’t hurt to find out…no?

    To the 3 Mice:

    I’m not sure what it is I wrote that you thought attacked Hilary Rosen’s “guesthood” on this blog. Regardless, I’m sure she can handle herself by either ignoring or responding to any offensive comments. In fact, having “The Mice” stick up for her is about as offensive a manouvre as one can imagine as it simultaneously reeks of a very brown nose…

  • three blind mice

    I don’t think that the debate is about whether or not the internet will or should be governed by laws….but of what type of laws.

    preferrably the existing laws Fiepoto. the economy of rents and exclusion is every bit as self-healing and as productive as the kum-ba-yah of the commons.

    we would argue that the rents and exclusions model is more productive, more sustainable, and like capitalism, more consistent with the principles and ideals of liberal democracy than is commons-ism. consider, if you will, that linux would not exist save for the market for proprietary microprocessors that windows created. it is a follow-on technology – not a leading edge technology. (the same may be said for open office, thunderbird, firefox and many of the other open source alternatives to existing proprietary software.)

    co-existence is a fine thing. competition is a good thing. we are all for it. the problem is that the commons does not want co-existence because the commons stops where the property of others begins. to keep up, whether in software or in music the commons wants – the commons needs – to follow the leader.

    so the commons wants to change the rules. the solution offered by the commons-ists is, not surpringly, is to confiscate the property of others (the leaders and the innovators) or to otherwise make it impossible for property owners to prevent trespass. that’s not co-existence. it’s not competition… it’s copying.

    if real creativity and real innovation occurred within the commons and within the FOSS community, there would be NO need to be concerned about the property of others.

  • three blind mice

    Will you be responding directly to any comments within the threads or will you simply be in lecture mode and stick to top-level posts the entire visit?

    well Peter Rock, where we come from guests in our home are treated better than the host. you would not (and do not) speak like this to professor lessig.

    In fact, having “The Mice” stick up for her is about as offensive a manouvre as one can imagine as it simultaneously reeks of a very brown nose…

    *mice turn the other cheeks*

    how sweet. sir, the anonymous voices of the three blind mice have no need to suck up to anyone. pray tell, what would be the point? unlike others who wish to draw attention to themselves, we don’t post a URL, we don’t post an e-mail address, and we provide no connection to the real person behind the words. we’re totally anonymous. get it?

    that being said, like it or not Peter Rock we are all members of this blog family and this is our collective home… our (yours and ours and everyone else’s) commons if you will. one of the remarkable things about this commons is that those who visit are generally polite, occassionally intelligent, at times witty, all too infrequently funny, but almost always devoid of ad hominen intent. in the echo chambers of cyberspace, this is – you must agree – highly unusual.

    we do ask (most kindly) that you refrain from littering the commons. keep the lessig blog beautiful. it makes for a more pleasant visit and creates a better enviroment for the exchange of ideas.

  • rodander

    Time for me to stick up for the mice.

    The three blind mice and I have had quite heated disagreement on at least on past topic, to be sure. But the mice don’t keep personal grudges; on later topics, they’ve listened to what I’ve said and when they agree with me, they’ve said so. Same goes for poptones. That speaks well for the open-mindedness of the mice and of poptones, and in general for the commenters on this blog. And that is what gives me the confidence of posting comments here — I know that most will read what I have to say and comment fairly, whether they agree or disagree.

    So, Peter Rock, I advise you to follow the lead of the mice and poptones, and let’s keep the sandbox clean.

  • Corey

    “why should the on-line community exist under a different legal regime than the real world? “

    Oh, lets see… perhaps because the online community isn’t really real, or perhaps because it is but it encompasses more people and cultures than any single legal regime including the Anglo-American one you would presumably adopt for us all.

    “corey, you give us the impression of someone who is awed by technology.”

    No, actually I was an engineer for 8 years. There are things I helped develop inside your computer most likely. Many people get confused though, I have become somewhat of a techno-skeptic and resemble an anarchist.

    “and like capitalism, more consistent with the principles and ideals of liberal democracy than is commons-ism.”

    There you go again, postulating the superiority of neoliberalism. By the way, all graphical browser software including IE can be traced back to Mosaic, which was a government/university project that was distributed for free.
    Netscape and IE were “follow-ons” designed most obviously to extract property from something previously “common”

  • http://blogs.jigzaw.com Shannon Clark

    There is a critical difference between the “Internet” and other spaces governed by US laws.

    For one – the “Internet” is truly global (I think the last country without connectivity has now been connected) and while it is true that US legal decisions have a way of being written into treaties and/or copied around the world – as we have recently seen in the case of the EU rejecting Software Patents this is by no means universally true.

    So when the US, as in many recent laws like the DCMA, tries to legislate for the Internet as a whole it may in a very real sense be fighting a losing battle, with the biggest losers possibly being US citizens (and our corporations) who will be prevented from the full potential of digital technology.

    In the case of online gambling, for example, this is a complex subject – but it is also very clearly one where companies (and their millions of customers) in other countries are seeing a great deal of innovation and revenues.

    In the case of innovation in less politically charged realms – from patents to music – I personally find it striking that some of the most innovative music I have heard recently have been mashups, mostly from Europeans (though they are likely difficult to license in Europe as well as the US).

    On a more legally clear example, I listen to a large number of podcasts – however here in the US they are restricted heavily by limitations (specifically the lack of legal universal licenses ala radio licenses) to allow podcasters to mix and play any song they would like to. However other countries have adopted radio-like universal licenses and the result is one of my favorite podcasts and a mix of music better by leaps and bounds than any radio station I have ever heard (on or offline) – Karin’s Themed podcasts. These are about 1 hour blocks of music bound by a common theme – often a very international selection of music, but even when she selects only English language songs her groupings and selections cause me to hear old songs in new ways.

    She pays the licensing fees in the Netherlands to be in legal compliance – so the artists she plays do get compensation from her playing of the music, in much the same way they do when a radio station plays them – and as a fan I gain the great benefit of hearing old music in new, creative ways.

    I think for many forms of non-duplicative creative use (i.e. not selling a CD that is an exact copy of the artist’s CD) a form of universal license such as the radio license – though probably tiered and/or with a per-unit percentage of price capped fee – could make much more sense than the current “clear every right with every possible rightsholder”. Especially since the number of “orphaned” copyrights is huge and growing (even works created just years ago can be difficult if not impossible to track down the copyright holder of. A simple example, I wrote to many USENET newsgroups in the early 90′s – my writing gained am immediate copyright – however if you were now to want to print, in full, the content of a specific USENET newsgroup you would have to find each poster and get permission. I am no longer at the email address I posted under, which was a university account, a quick google search of the Internet does turn me up as the first “Shannon Clark” and indeed I list on my profiles that I attended the university where the posts came from – so it is probable that I am the same Shannon Clark – but how can you be certain? There are literally dozens of other Shannon Clark’s in the US. And I did this fairly simply, I posted under my own name – what about someone like “three blind mice” – how would you go about including his comments, in full, in another creative work?)

    The point is that the requirement “get permission first” is increasingly untenable.

    Here in the US we do not currently separate out commerical and moral rights – in the EU they have taken the approach that these rights are separate (which creates the complication that in the EU creative commons licenses or attempts to put new content into the public domain may still be bound by “moral rights” which apparently the authors may not be able to waive completely).

    I think we should make it easy for the “public domain” to grow again – both by cleaning up orphaned copyrights (Lessig’s suggestion of a minimal registration fee would clear things up pretty quickly and separate out “commercially viable” copyrights from the millions of orphaned ones – and have the further advantage of making it clearer which works were/were not in the public domain) and by making the process of offering up works to the public domain easier (and perhaps making some areas, such as comments especially anonymous ones, USENET etc areas where the public domain is assumed – that is by posting publically unless you attach restrictions you waive future need to contact you for permission to quote, remix, etc)

    Moral rights – i.e. the right not to have your words used in ways you do not agree with are a much trickier issue. I think, however, it might be possible to expand the concept of “misrepresentation” (and/or libel) to cover this without much difficulty. (i.e. you can use what I right without first clearing it with me – but you can’t use it in a way that makes it appear that your changes/remixes are my original work – i.e. use my works to claim that “Shannon Clark wants there to be no public domain at all” via the means of selective editing and insertation of new words into my text.

    You could, however, use my words in a quotation (even an extended one that might go beyond “fair use”) as part of your pamphlet or book arguing against my position. If my writings had a way of being placed in the public domain OR if you had a way of obtaining a “radio like” license then I (in the US at least) couldn’t object to your usage and use that objection to prevent (or make commercially onorous) the publication of the book.

    It is not always going to be a clear line – and multimedia examples will be complicated (does the music playing a documentary imply that the musicians condone the actions appearing on screen to their music? what if it isn’t a documentary but a commercial? what if it isn’t a ‘commercial’ but is a ‘reality tv show’?) but I think there are alternatives which offer great benefit than the current stasis and uncertainty.

    Shannon

  • Fiepoto

    TBM, thankyou for your comments. Although I would agree with you that allot of innovation does occur in proprietary production methods, i believe you overstate the case that commons projects (especially FOSS projects such as Linux, or what we now know as the internet for that matter) would never have been possible without proprietary exclusion licenses in place. I don’t really think this is a matter of opinion or argument, but of fact. (the body of literature on this point is rather extensive, prof. Lessig himself points this out in OPEN ARCHITECTURE AS COMMUNICATIONS POLICY, pgs 44-54)

    Now, as far as “innovation” is concerned…one of, if not the primary advantage that commons production has over proprietary production (for the record, let me point out that I’m talking about digital/idea production, NOT material production) is that you do not have to expend resources on distributing labour. Labour distributes itself, people work on things that interest them…this has enormous concequences for both the innovation of technologies and long term effeciency.

  • three blind mice

    There is a critical difference between the “Internet” and other spaces governed by US laws.

    excellent observation Shannon Clarke and a well-written and well-argued post.

    no one said it would be easy lest of all us. we think there are few people outside the US republican party that want to see more US hegemony. especially when that US hegemony is controlled by the US republican party.

    *mice get cold shivers*

    the internet will change. is it changing. there is no question about it. in countries such as china it isn’t the same internet as it is in america. there is nothing that says the solution need be one-size-fits all.

    the OSI stack gave us seven layers, separated bearer services from transport and that opened up the floodgates for applications… what the OSI model didn’t provide is a legality layer and this is what is now hindering innovation. as we have said before the internet is literally starved for rich content of legal music, movies, photographs, archives, etc. that are being withheld because once they are released they can no longer be controlled.

    the legality layer will have to introduce legal policies. ownership of those policies will have to be distributed among individuals and regional governments… and the machine will have to obey those policies/legalities because apparently individual users will not.

    like the march of technology, the introduction of law and the means to enforce it seems inevitable.

    the frustrating thing for us Shannon Clark that instead of working together to achieve compromise, we are engaged in binary struggle over ideology.

    Fiepoto: i believe you overstate the case that commons projects .. would never have been possible without proprietary exclusion licenses in place.

    proprietary windows created the economy of scale that resulted in all of those proprietary microprocessors on which linux runs. it ain’t all free and it never has been. the FOSS community needs to give a nod to “old-fashioned” methods of development.

    and finally Corey… the recovering engineer.

    There you go again, postulating the superiority of neoliberalism. By the way, all graphical browser software including IE can be traced back to Mosaic, which was a government/university project that was distributed for free.

    good point about Mosaic. if it had been GPL:d neither Netscape nor Microsoft could have swiped it. but then again, had Netscape patented some of the features they added, IE wouldn’t have been able to steal it from them and the brower market – and perhaps the software industry – might look quite different today.

    as regards the superiority of Schumpeterian progress.. well color us capitalist. you will pardon us if we do not share your enthusiasm for commons-ist development.

    well it seems most of us have had the chance to repeat beat our usual drums in this thread again!

    Peter Rock sorry if we came off as a little condescending. we are not immune to the caustic comment and we hope we haven’t put you off. you are one of the strong – although misguided – voices here and it we would have done no service to the community if we made you feel anything less than welcome.

    it’s boozing time!

    thanks for another good discussion everyone.

  • http://gnuosphere.blogspot.com Peter Rock

    TBM quoting me:

    Will you be responding directly to any comments within the threads or will you simply be in lecture mode and stick to top-level posts the entire visit?

    TBM:

    well Peter Rock, where we come from guests in our home are treated better than the host. you would not (and do not) speak like this to professor lessig.

    Side question: How would you know how Larry and I communicate?

    Regardless, we are now at 116 comments in threads and not one is Hilary’s. I don’t expect her to respond to everyone, but what is the point of blogging if you are going to be only passively and semi-responsive to your audience? Why is she here? Why not just go on television?

    I want to know if she considers the future of digital culture for stakeholders (rather than simply shareholders as was her duty as president of the RIAA) and what it will mean for my children and her children and Lessig’s children and Lasica’s children and on and on and on…if we continue to use the entertainment industry (i.e. the movie and music corporations in their current form) as a vehicle for art when there could be a radically better way of pursuing and creating digital culture.

    Perhaps the RIAA was necessary but technology has revolutionized the status quo. The problem is that the RIAA is interested in maximizing profit instead of looking after artists. They say they are looking out for the artists but they are not. At best, the RIAA is looking after their artists but not artists as a whole. A different approach by consumers (i.e. something resembling Fisher’s ideas) and mission (i.e. something resembling a non-profit organization working to defend actual rights instead of privileges), I believe, is something important to pursue.

    Peter Rock

  • three blind mice

    we hardly had a chance to pour a whiskey…

    How would you know how Larry and I communicate?

    well, umm, we read this blog. what you say to professor lessig outside these four walls is your own business.

    you do realize, Peter Rock, that Ms Rosen no longer works for the RIAA and she specifically said that she didn’t want her guest hosting to become a forum for a discussion over her tenure there.

    again, professor lessig does not often participate in the topics he posts and it is not unusual, or troubling, that Ms Rosen has not.

    as for your concern for future generations, our advice to you would be to tune in, turn on, and drop out of the entertainment culture. old fashioned books, our mineral friend, that’s where the future lies! have you read eats, shoots, and leaves? we know it’s so last year, but we bought a copy at the community center book sale this weekend and it’s good fun.

    still if “digital culture” is your concern, tune into the creative commons database and be enriched… ahh.. but the good stuff, the stuff you want, is controlled by the evil, exploits-their-artists RIAA. what a pity. those silly artists. giving up all that money for nothing. so live without coldplay. the hipsters have already moved on.

  • Peter Mogensen

    Interesting story Hilary.
    I must say that I recognize your “long used legislative tactic”. It’s often used as an excuse not to the legislative job proberly. DMCA and all it’s spawn are no exceptions.
    These laws deal with something they call “technological protection measures”, but any computer scientist who is not trying to make money selling DRM would tell you that such a thing can not be made to work in software. Attempts will only create non-interoperability. You can make secure DRM systems with hardware, but the effect will be the same: incompatible systems.
    In the end this quest to get DRM into everything will mean a goodbye to the one thing which made the PC and the Internet a success: That is is open systems. If Hollywood gets their way we will be back in the 1980′s where all computersystems were closed, propritary and incompatible… which of course will result in a monopoly.

  • poptones

    My goodness! I copy this brief bit of text to my clipboard and read on through twenty posts wondering how I am to put it in context, only to find at the end the perfect setup…

    In this day of worldwide instant communication and ebay commerce, one would think that an online licensing marketplace could spring up.

    As TBM just pointed out, so many of those “rights” are owned by corporations and so it must be up to them to decide the proper venue for such a clearing house of their own. But such a forum does indeed exist for those who choose to participate and still retain rights which they may themselves license. Magnatune is only one such example and it’s made quite easy – as easy as an ebay purchase, in fact. For a few tens to a few hundreds of dollars one can point and click and purchase a license for a a bit of music in only a few minutes.

    And I must take exception to those who would dismiss these artists as not quite having “it.” Some fantastic music can be found there, but you’ll never know if you don’t listen. Fortunately this is made quite easy as well, just click a link and enjoy the entire album… as many times as you like.

    And somehow these artists manage to be creative without lifting vast sections of their corporate contemporaries. Just as the information embodied in Shannon clark’s usenet post (or mine – and trust me, there are megabytes of them) can be conveyed without having to quote directly a single phrase, so too can artists reinterpret.

    And I was tempted, but managed to resist, fawning over Ms. Rosen myself. Without taking away from the other guests who have appeared here (and disappeared) over the last weeks I have most looked forward to hearing from Ms. Rosen in this context. Since others are now “out” I will admit I was downright giddy when I first read she would be appearing on this blog.

    And, sadly, I must now admit I too am a bit disappointed we have not heard more from her. I can understand priorities and such and “blogging” can be difficult when one is leading the conversation rather than merely reacting within it (that is why I am posting here, now, after all… rather than posting on my own).

    Still, it is thursday and so there is still hope we may hear a bit more. Ms. Rosen is one of the few (former) cogs of le mechanique I would truly love to meet outside this tiny box that too often contains “us.”

  • http://gnuosphere.blogspot.com Peter Rock

    3BM:

    the internet will change. it is changing. there is no question about it. in countries such as china it isn’t the same internet as it is in america.

    ?!

    For someone who just spoke on software layers in the next paragraph I’m surprised you would say such a thing. The Internet is not changing at all. It hasn’t changed since its infancy. The Internet is exactly the same in China as it is anywhere in the world. This is why those in the Chinese government who wish to block access to information must have engineers write code at layers above the Internet protocols (e.g. the browser) in an attempt to stop the dissemination of bits. Or, they can strike deals with self-interested corporations like Microsoft and purchase software like MSN Spaces that are pre-packaged to block content linked to free speech and democratic issues.

    See – http://news.ft.com/cms/s/d07011b8-d9d6-11d9-b071-00000e2511c8.html

    It is precisely because the Internet is the same in China as it is everywhere else that deals like this and those surrounding DRM through Hollywood occur. The Internet’s nature is to be free flowing. And unfortunately, organizations like the RIAA and MPAA are having a huge influence on how the technology (both hard and soft) develops over time when they really should have no say.

    Yes, “no say”.

    You see, the RIAA and MPAA in their curent form are bound by law to seek policies and influence government in a way that maximize profit – not benefit the public. I’m not blaming anyone – that is just an indisputable fact. But the beauty is, the RIAA and MPAA are not people – so we can use “them” and then toss “them” into the garbage once we have a complete troubleshot system ready to be put in place and not feel as though we have hurt anyone in the process. Sure, we can look at some sort of gradual buy-out of these organizations – they need not be financially obliterated overnight…after all, there are people monetarily connected (i.e. shareholders and directors) to these corporations. But their control over culture is not needed anymore – in fact, their control is keeping the potential for the worldwide distribution of digitized culture at bay. That is, it is much of Hollywood’s doing that the darknet exists.

    I don’t want my children or any children to have to go to the darknet in order to participate in culture. And with some imagination and a wholly different approach, I believe they wouldn’t have to.

    Peter Rock

    p.s. Lasica’s “Darknet” is a very informative book by the way. I bought it this summer and although I’m only about 3/4 of the way through it, I give it an early and high recommendation. “2 thumbs up” as Ebert would say.

  • poptones

    The Internet’s nature is to be free flowing. And unfortunately, organizations like the RIAA and MPAA are having a huge influence on how the technology (both hard and soft) develops over time when they really should have no say.

    Your fears are not well founded at all, then. You see, Hollywood and DRM already have “no say” over that flow of information. DRM is itself built upon encryption, and all the encryption in the world will not reroute those packets or reidrect them from their destiny.

    DRM (whether protecting content from Hollywood or one’s own tax return) depends entirely upon the routers and switches and servers doing exactly as they have always done.

    And the notion DRM will not work because people can opt out is as silly as saying banks won’t work because people can still stuff dollar bills in their mattresses or barter labor for goods themselves. Of course all those things will work – and they will work better still when we are able to exchange information as securely and give select bits of that information sufficient scarcity as to carry with them meaningful economic value.

    I still cannot fathom how one can argue for liberty and freedom and how the internet will enable people to do all these amazing thngs with their lives while at the same time arguing against the very technoilogy we all need in order to do exactly that. Computers need electricity to run and someone has to pay the bills. And to a starving person all a computer represents in an asset that may be traded for food.

    We must make DRM work in order to be freed from the credit banks. How can this not be obvious to people?

  • three blind mice

    If Hollywood gets their way we will be back in the 1980’s where all computersystems were closed, propritary and incompatible… which of course will result in a monopoly.

    yeah, Peter Mogensen, just like GSM. which by the way STILL has more paying subscribers than the internet has users. think about that commons-ists. patent encumbered, proprietary, non-open GSM is the world’s most important communication system. and also the most egalatarian.

    as the Economist pointed out a few months ago, GSM also contributes more to the economic development in the 3rd world than the internet does. IWRC, the quote was “the real digitial divide is between nations that have GSM and those that do not.” access to the internet (except for nigerian spammers) wasn’t even an issue.

    Peter Rock don’t get all pedantic on us. to some people, internet means TCP/IP, to others it means the world wide web, and to us it means what happens when we launch a browser window. china is introducing the legality layer we talked about, as other countries will do the same independent of the others, this is what will create problems with interoperability.

  • Joseph Pietro Riolo

    To Three Blind Mice:

    Are you sure that GSM is patent-encumbered, proprietary,
    and non-open? According to the FAQ at:

    http://www.gsmworld.com/technology/faq.shtml

    GSM is an open, non-proprietary system.

    I don’t know what to make of your misinformation but
    you should clarify what you meant or withdraw what
    you said.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

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

  • http://gnuosphere.blogspot.com Peter Rock

    Poptones:

    Your fears are not well founded at all, then. You see, Hollywood and DRM already have “no say” over that flow of information. DRM is itself built upon encryption, and all the encryption in the world will not reroute those packets or reidrect them from their destiny.

    I understand what you are saying Poptones – I didn’t make myself clear. In fact, I spotted my error. I meant (correction in bold) -

    —–
    organizations like the RIAA and MPAA are having a huge influence on how the technology that sits upon the internet (both hard, soft, and firm) develops over time when they really should have no say.
    —–

    We’ve seen Hollywood take down some software at the application level (e.g. Napster). With the “trusted computing” agreement, Non-free BIOSs on ROM chips has become an issue as consumers can be herded into buying particular hardware that will be compliant only with particular operating systems. That layer is now under attack. And at the processor level itself there is already speculation over Intel DRMing (i.e. more “trusted computing”) their upcoming VIIV processor. Many are speculating whether or not the upcoming Mac move to Intel has something to do with this.

    I agree on one level, Poptones, that all the DRM in the world will not stop packets from switching. But pragmatically, Hollywood is saying that we cannot live in a world of free (as in freedom – not price) software and expect to be a participant in much of our digital culture. The corporations are essentially saying – “Sure, you can do anything you want…anything that is, that we allow to have happen in your little free software prison cell.” All the free software in the world won’t help if the processors and ROM/BIOSs are controlled by the corporations and turned into black boxes.

    You see, I want freedom – not free stuff. I have piles of legally purchased books, CDs and DVDs. I don’t even have a p2p file sharing program currently installed on my GNU system at home. In fact, at home, less than 1% of my 500+ CD/DVD collection violates(?) copyright law (and that’s only if you consider the unasked-for gifts I’ve received from friends who’ve ‘burnt’ stuff for me as ‘illegal’). However, I have downloaded and kept entire “All Rights Reserved” works anonymously through the internet at work. But I must have this access at work and should not be told I need to buy from any particular software or hardware or firmware vendor. My rights to content are protected under fair use, but what is protecting my rights from having to buy from a particular motherboard vendor or a particular processor vendor and run a particular operating system in order to obtain digital culture?

    Especially considering my work necessarily requires me to freely share in order to perform my function to the best of my abilities, I must have freedom and so too must those whom I share software and digital culture files with who number in the hundreds. This is why I am shocked when Mice squeak and claim that the creative commons supporters just want free (as in price) stuff.

    Bottom line is – I need freedom in order to create the absolute best work environment.

  • http://www.darknet.com JD Lasica

    Thank you, Peter, for mentioning “Darknet: Hollywood’s War Against the Digital Generation,” which speaks to many of the issues raised above. I’ll send you a copy, gratis, if you’d like, Ms. Rosen. Seriously. There’s a discussion about the issues raised in the book — incluiding fair use, the DMCA and outmoded business models — at http://www.well.com.

    What is fascinating, as you write above, is not the miniscule amount of people who face lawsuits by the music companies (not so miniscule if you include file sharing lawsuits), but the chilling effect the entertainment companies’ entrenched position has had on remix culture. (Ms. Rosen hasn’t addressed grassroots creativity in any of her posts.)

    As to the “always get permission first” mindset, no need to buy “Darknet,” just check out the free mini-book at Darknet.com, including this: When the studios won’t give permission.

    http://www.darknet.com/2005/07/when_the_studio.html

    And as to this:

    >Public Enemy was genius. Did they lose their mojo because they stopped sampling?

    Yes, because they (and the majority of hip-hop artists) can no longer afford the cost of sampling multiple 3-second riffs. And we haven’t even touched on mash-ups … :~)

  • poptones

    Absurd. Ridiculous. I’m sorry, but no lesser adjectives describe this sort of FUD.

    First, look at Apple’s recent fiasco with the beta OSX/X86 systems… these have DRM components built right in and yet, miraculously, they run both Windows and linux! Those thinkpads Stallman was talking about, too, include TC components and yet, somehow, I have had no trouble getting them to boot, install, and run linux. There are even people (too few, sadly) working to incorporate those TC “hooks” into linux.

    The specifications for the TC platform are available on their website. A full command list and spec is linked right form their front page. Of course, like all trade organizations they have “members only” sections and all that sort of nonsense and we lowly “consumers” of their information have no say upon the direction or development of this technology.

    But that is by our own folly. I’ve been pretty vocal on the ubuntu site about this as well, I finally gave up realizing that the FUD simply runs too deep to garner much support until someone in a leadership position picks up the ball, and it’s unlikely Shuttleworth spends even a nanosecond reading posts there anyway.

    Not that I’m picking on Shuttleworth… but he’s the founder of ubuntu linux. and He’s a Millionaire technologist with a political kink. I use ubuntu myself, so this is the first direction I head. But he’s not alone; there’s Linspire, and Redhat, and Novell, and a host of other smaller companies out there that could easily come up with the $50K/year “membership fee” that would put them on the voting board of the TCG. And TC is not incompatible with linux or with liberty – but until the leaders of this “free community” get over their hypocrisy and zealotry none of that is going to matter. If they truly demand a free hardware platform then one of these leaders needs to fire up the sourceforge and rally some meaningful support for the project. the doomsday scenario outlined in that article you linked already exists and has for some time.

    When I install and run ubuntu I do not begin with the kernel source. I may have to recompile the kernel at some point, but even when I do so I am not beginning from a full source tree – most of it is linked from precompiled modules. I have an AMD system and so to even get decent graphics I have to similarly run a proprietary piece of software from them. yes, this is annoying; I bought my motherboard for the sound mixing features but am unable to use any of them because Nvidia refuses to add those features to the proprietary drivers for my motherboard.

    So, I am already using proprietary software. and if you are using linux on a system of recent vintage then you are as well: intel, ATi and Nvidia ALL have “proprietary” features in their chipsets and, therefore, the “open” drivers available support only the most basic features. If your computer was made after about 1999 then it is presently impossible to escape this requirement of deploying some proprietary modules upon otherwise “open” linux systems – and yet linux based systems of recent vintage exist. They do their job and they do not betray the owner via backdoors. (To do this would be foolhardy, of course, as they would be found out and their customers would flee to those suppliers who do not betray them.)

    There is nothing to prevent Mark Shuttleworth from sponsoring one or more technical members at the TCG, developing a trusted kernel module for ubuntu, and making ubuntu a trusted root authority. Would the module itself be “free?” No, no more than the Nvidia modules I already run on my linux machine. But Mark Shuttleworth has shown himself to be a friend of the community, and the corporation behind ubuntu linux is a bonafied (and, therefore, responsible) party that would surely qualify for membership within this organization (and were they denied such membership one can well imagine the press battle and the governmental antitrust investigations that would follow).

    Would this make all linux systems TCPA compliant? No, it would only make those running ubuntu’s kernel compliant. Nor would it make all the software run upon these systems “trusted.” That does not, however, preclude anyone from choosing to develop software that would be trusted nor would it preclude anyone from choosing to run said software.

    TCPA is, at its core, a very good thing for all of us. It builds robust encryption right into the platform which will increase performance. And the entire point of the platform is to allow the machine to keep individual processes segregated from one another, which means you can have “good” and “bad” software running at the same time – this is not a bad thing. It would dramatically increase the security of computing systems regardless of whether the owner of a system chose to link the machine to Hollywood’s root authority.

    And if you don’t want to use that stuff then there’s nothing to prevent you from opting out of all of it – as many parts of the world are likely to do. The internet does not begin and end in the US and most of the TCG work is being done right now with an eye toward deployment in the US. In order for it (or for a competing platform – which we are still quite free to develop) to succeed then it will have to offer real benefits to the consumer and it will have to work as advertised.

    There are valid objections to this deployment. But DRM of some sort is coming – and it must if the internet (aka the web) is to ever live up to the hype. So long as there is no DRM, every person who uses the web for commerce will be a slave to the credit banks and, ultimately, the world bank and the will of the US.

    You want to see creativity stifled? The Noriega factor is a greater hindrance to societal change and artistic expression than all the lawyers and lobbyists in Washington. And until a platform is made available to us all that will allow for the electronic equivalent of a trustworthy cash like system of exchange, JP Barlow’s “declaration” amounts to nothing more than a utopian call to martyrdom.

  • http://www.commonsmusic.com Commons Music

    Y’know, TBM, it’s funny you mention the innovation Windows provided, considering how it started:

    Microsoft shipped Windows on November 20 [1985], and two days later during Fall COMDEX (a huge industry trade show) in Las Vegas, Gates and Sculley signed a confidential, three-page agreement that granted Microsoft a “non-exclusive, worldwide, royalty-free, perpetual, nontransferable license to use these derivative works in present and future software programs, and to license them to and through third parties for use in their software programs.” In other words, Apple got Microsoft’s commitment to upgrade Word for Macintosh, delay Excel for Windows until October 1, 1986, plus an acknowledgement that “the visual displays in [Excel, Windows, Word, and Multiplan] are derivative works of the visual displays generated by Apple’s Lisa and Macintosh graphic user interface programs.” In other words, Microsoft got Apple’s crown jewels, and Apple got shafted. Not since British Prime Minister Neville Chamberlain appeased Adolf Hitler with the Munich Pact of 1938 had the world seen such a fine demonstration of negotiation skills.

    And DOS was bought by Bill and Co. from a company, and cleaned up from it.

    Microsoft was built on the idea of (very slyly) taking software from other companies. There was actually a movie made a few years back that aired on TNT about Steve Jobs, Bill Gates, and the whole start of the computer age, called The Pirates of Silicon Valley (har har har). It’s definitely recommended, I would really suggest watching it (everyone, really). In fact, this is great timing! The DVD of the film is about to be released on August 30th.

    Of course, Xerox was the originator of the GUI and the mouse in the first place (with more visionary executives, we could be bitching about them today instead of Microsoft or Apple…heh).

    TMB, you accused me of hyperbole in a prior post, but now I’m accusing you of simply slinging mud in directions that make no sense. I love a great deal of Creative Commons and indie music. Hell, I’m an artist, too, and my group is actually selling stuff (yay us!), in part because of (not despite) the fact that we’re offering the whole works free online. Part of our music was taken from CC sources, and yet I haven’t heard anyone accusing us of being unoriginal or mediocre. Sure, our style isn’t for everyone, but we worked damn hard on the album. Not everything that is “proprietary” is somehow better than something that is borrowed or changed. Peter Jackson’s imagining The Lord of the Rings trilogy is a great example of a derivative work being very powerful, very original, and very innovative. But, you argue, he paid for it (or, more accurately, New Line paid for it). But I’ve heard you complain on several occasions about non-proprietary somehow being worse (or at least that’s the feeling I get from your posts). But does that only apply to free (legal) borrowing, and not bought-and-paid-for borrowing? You seem to equate free borrowing and free music (not “free” as in beer) as somehow lesser figures with fewer talents. I’d like to argue that this is absurd.

    Like anything, monetizing something and placing huge backing behind it does create a lovely market. I’m kinda curious how well Tryad would do with a major label backing, actually.

    But, I do think that CC is a great step to no longer needing those companies to promote and sell and distribute and market and control. I’m not saying, nor advocating, that they disappear, but just that they will no longer be an integral part of success…you see? And, more importantly, that something that just pops into someone’s head is not necessarily better than something borrowed from someone else (especially if that borrowing is legal…or at least if you have a licensing agreement that really screws ‘em over, am I right?).

  • http://www.commonsmusic.com Commons Music

    Y’know, TBM, it’s funny you mention the innovation Windows provided, considering how it started:

    Microsoft shipped Windows on November 20 [1985], and two days later during Fall COMDEX (a huge industry trade show) in Las Vegas, Gates and Sculley signed a confidential, three-page agreement that granted Microsoft a “non-exclusive, worldwide, royalty-free, perpetual, nontransferable license to use these derivative works in present and future software programs, and to license them to and through third parties for use in their software programs.” In other words, Apple got Microsoft’s commitment to upgrade Word for Macintosh, delay Excel for Windows until October 1, 1986, plus an acknowledgement that “the visual displays in [Excel, Windows, Word, and Multiplan] are derivative works of the visual displays generated by Apple’s Lisa and Macintosh graphic user interface programs.” In other words, Microsoft got Apple’s crown jewels, and Apple got shafted. Not since British Prime Minister Neville Chamberlain appeased Adolf Hitler with the Munich Pact of 1938 had the world seen such a fine demonstration of negotiation skills.

    And DOS was bought by Bill and Co. from a company, and cleaned up from it.

    Microsoft was built on the idea of (very slyly) taking software from other companies. There was actually a movie made a few years back that aired on TNT about Steve Jobs, Bill Gates, and the whole start of the computer age, called The Pirates of Silicon Valley (har har har). It’s definitely recommended, I would really suggest watching it (everyone, really). In fact, this is great timing! The DVD of the film is about to be released on August 30th.

    Of course, Xerox was the originator of the GUI and the mouse in the first place (with more visionary executives, we could be bitching about them today instead of Microsoft or Apple…heh).

    TMB, you accused me of hyperbole in a prior post, but now I’m accusing you of simply slinging mud in directions that make no sense. I love a great deal of Creative Commons and indie music. Hell, I’m an artist, too, and my group is actually selling stuff (yay us!), in part because of (not despite) the fact that we’re offering the whole works free online. Part of our music was taken from CC sources, and yet I haven’t heard anyone accusing us of being unoriginal or mediocre. Sure, our style isn’t for everyone, but we worked damn hard on the album. Not everything that is “proprietary” is somehow better than something that is borrowed or changed. Peter Jackson’s imagining The Lord of the Rings trilogy is a great example of a derivative work being very powerful, very original, and very innovative. But, you argue, he paid for it (or, more accurately, New Line paid for it). But I’ve heard you complain on several occasions about non-proprietary somehow being worse (or at least that’s the feeling I get from your posts). But does that only apply to free (legal) borrowing, and not bought-and-paid-for borrowing? You seem to equate free borrowing and free music (not “free” as in beer) as somehow lesser figures with fewer talents. I’d like to argue that this is absurd.

    Like anything, monetizing something and placing huge backing behind it does create a lovely market. I’m kinda curious how well Tryad would do with a major label backing, actually.

    But, I do think that CC is a great step to no longer needing those companies to promote and sell and distribute and market and control. I’m not saying, nor advocating, that they disappear, but just that they will no longer be an integral part of success…you see? And, more importantly, that something that just pops into someone’s head is not necessarily better than something borrowed from someone else (especially if that borrowing is legal…or at least if you have a licensing agreement that really screws ‘em over, am I right?).

  • http://commonsmusic.com/ Commons Music

    CORRECTION: TBM (not TMB)

  • http://modleft.blogspot.com Jeremy

    I think you correctly point out that civil libertarians, whether they be free-content or anti-patriot act nazis, are terminally paranoid.

  • Peter Mogensen

    @poptones

    You posted a rather pasionate defence of “trusted computing”.

    Let me clearify: I agree with you that the principles of trusted computing is not bad in it self and such systems _could_ actually be a valuabe security tool.

    The problem which people see with TCPA/TCG is not the specifications in general, but the concept of the “endorsement key”, but is not owned by the owner of the computer AND with the posibility of building a infrastructure on top of the endorsement key, which in effect will let producers of hardware be able to dictate to consumers which software they are allowed to run in they want to be a part of online culture.

    EFF has an article about the problems:
    http://www.eff.org/Infrastructure/trusted_computing/20031001_tc.php

    Give the owner of the computer knowledge about the endorsement key or make an “owner override” and this will actually be something you can trust.

  • poptones

    Give the owner of the computer knowledge about the endorsement key or make an “owner override” and this will actually be something you can trust.

    That EFF article is ancient and it would seem you haven’t even read the comments section where the foolhardiness of that notion was pointed out months ago.

    By definition you cannot have a trusted system if that system contains backdoors that allow the owner of the machine to tell it to lie. Putting an “owner override” of the type called for in that article would mean anyone could disable any DRM components installed. In the scenario I am conveying, such a backdoor would be, literally, a license to print your own money. No one in their right mind would ever trust such a system.

    Like I said: the point of this system is to allow components to exist in their own sandboxes. If you want to run edonkey no one is stopping you, but you won’t be able to move the files you bought from itunes into that untrusted application. You can play your mp3s in itunes, but you can’t play your itunes in xmms. If you truly care about free culture that won’t matter to you anyway, since you’ll only be buying fairly licensed music direct from the artists.

    The “owner override” is called “deny root authority.” No root authority is going to give you their private key any more than I would ever give you my own private PGP key. If you don’t want to trust Hollywood’s root authority, then lock them out and watch your Hollywood HD-DVDs with a $49 Apex like everyone else – or do like me, and don’t watch them at all.

  • http://www.farceswannamo.com Dave W.

    PE didn’t lose their “mojo.” Rather, they lost their primary musical instrument. That seems to be the part you are not getting. What you did is akin to smashing YoYoMa’s cello and then wondering where all the genius went. In a word, disingenuous.

  • three blind mice

    PE didn’t lose their “mojo.” Rather, they lost their primary musical instrument. That seems to be the part you are not getting. What you did is akin to smashing YoYoMa’s cello and then wondering where all the genius went. In a word, disingenuous.

    well that’s quite an analogy Dave W.

    “what counts is that the rhymes
    designed to fill your mind”

    Public Enemy lost the rhymes and became irrelevant. loss of magic charm didn’t have anything to do with it.

    what about Spike Lee? do you think Spike Lee should have been able to sample “Fight the Power” without compensating Public Enemy in order to produce Do the Right Thing? it was just a little sample. less than one minute in a 2 1/2 hour film. sampling was essential to his artistic expression. right?

    what about Spike Lee’s freedom? what about his mojo?

    maybe D.J. Lord and Chuck D would have been down with that, but we thinks Professor Griff and Flava Flav would have wanted their money. especially Flav.

  • rodander

    I think if you smashed Yo-Yo Ma’s cello and made him rent a student instrument from the local music shop (or even made him play the tuba), you’d still be hearing genius when he played. Yo-Yo Ma’s genius is in Yo-Yo Ma, not in the wood.

    So if by “taking” PE’s musical instrument, one took the genius, then one can wonder where the genius was to begin with . . . ?

  • http://www.andrearogers.com Andrea Rogers

    I’m really enjoying these guest commentaries on Lessigs blog.
    I love the creative commons,use the creative commons and I took my kids to the Napster Hearing back on April 1,2001.
    They still have the dusty blue T-shirts,but the hearing went right over thier heads, they remember going, but not what it was about. Mom’s crazy field trip was in vain, which is sad because we are all artists and the issues are important. In retrospect I should not have been surprized, afterall the other kids in matching t-shirts on field trips to Washington D.C probably did not understand all of the issues surrounding copyright, though that day I wished I could have steered them all into attending the hearing. So many gray areas, and a kind of us versus them partisanship, demanding that we choose sides.

  • http://www.farceswannamo.com Dave W.

    1. I think “It Takes A Nation Of Millions” was a product of both the rhymes and the music. As a matter of fact, if I could compare the importance of these two disparate constituents, I would say the music was more important to PE’s genius when they were genius. Maybe Terminator X would have gone down the tubes without Ms. Rosen’s help, but I guess we can never know that. Interesting to watch Ms. Rosen ponder that lil piece o path dependence. My guess is that Terminator X would have found someone even better if Chuck and the other co-lyricists stopped bringing the rhymes. There are other rappers, ya know. Lots.

    2. It is overwhelmingly likely that if YoYoMa were restricted to the banjo or French Horn tomorrow, then the quality of his artistry would be impacted, hugely and negatively. To think otherwise is just plain foolish.

  • Peter Mogensen

    @poptones

    Which “comment section” ? Could you please point me to the argument you’re making?

    You cannot speak of trust without defining who can trust who. You’re speaking of Hollywood trusting my computer, and I’m speaking of me trusting my computer.
    Unfortunately you can’t have both. If a third party can deny speaking to me unless I run the exact software which they have approved, I can be forced to use specific software or stay away. Unlike you I don’t believe that it’s always an option to just stay away. I might do fine without Hollywood DVDs , but there
    will come applications where I will be forced to run specific software. And not all software is available for all platforms, so I will also be forced to run a specific OS (at least on one computer).
    What would stop a company requiring you run IE to access their website?

    I can see from your arguments that you believe TC to be the solution to online cash. I don’t … I simply don’t want to be dictated who I have to trust to trust my cash.

  • rodander

    Let’s see how foolish, Dave W. Maybe some musicians on this blog can weigh in on : How much of one’s musical talent and artistry depends on choice of instrument? (not talking about acquired skill, obviously — I wouldn’t expect Yo-Yo Ma to pick up a tuba cold and toot out Bach Sonatas, but given time . . . )

  • http://www.commonsmusic.com Commons Music

    rodander, you said, “How much of one�s musical talent and artistry depends on choice of instrument?”

    I think what Dave W. was getting at (and correct me if I’m wrong) was that people can be extremely talented on one instrument, but not so much on another. For instance, I played both trumpet and piano, but I was much better at piano, and took to it much quicker. If I did not have the piano to work with, I would still play as well on the trumpet, but wouldn’t have nearly the ability. So, essentially, it’s not a matter of choice of instrument, but talent on certain instruments and lack of ability on others.

    At least that’s how I’ve seen it to be.

    Now, that’s legality aside. From a legalistic standpoint, the arguments are much different (of course).

  • http://commonsmusic.com/ Commons Music

    BTW, my apologies for the double post up above, I didn’t realize I did that.

  • Peter Mogensen

    Jumping into the talent discussion:

    I play the trumpet… and several other instruments. Though I do not play piano or guitar. I don’t think it’s a matter of diffent talents. I just haven’t taken the time to learn the basics. I suspect than if I ever get around to learn guitar and relax when holding it (it hurts my fingers :) ) then I will be able to transfer what I know from other instruments. Of course, some instruments are easier than others. Brass instruments (like trumpet) require you to train your lips and keep them fit. A flute on the other hand is not a demanding to get a correct sound from.

  • http://www.commonsmusic.com Commons Music

    poptones:

    I’d like to ask you something: Won’t DRM have to be monitored and controlled by a DRM entity itself? Protection of financial records and data is good, certainly, but won’t that protection (aside from encryption, which is widely available) have to rely on an outside system to relay what is and isn’t correct to do with money, records, data, etc? How can we be sure that such DRM entities are more honest and secure and forthright than the monetary institutions already in place?

    I’m not trying to be snarky, I’m just curious why you think DRM systems would be more trustworthy than closed system encryption technology?

  • poptones

    Which “comment section” ? Could you please point me to the argument you’re making?

    The comment section on the linked EFF artiicle. But it doesn’t matter, I made the argument myself right in my post.

    You cannot speak of trust without defining who can trust who. You’re speaking of Hollywood trusting my computer, and I’m speaking of me trusting my computer.

    Why can you not trust your computer just because oyou agree to allow a third party to certify that parts of it work as advertised? What operating system do you use now? Who wrote it? Even if you use linux or a BSD derivative, did yu personally audit the Million or so lines that make up the core? Did you write the BIOS it runs when you boot the machine? Do you carefully checksum that contents every time it rebooted?

    How do you know you can trust the operating system you use now? If you live in the US and the police even suspect you of having illicit ties they are empowered to enter your home when you are not there and covertly install keylogging software. This software doesn’t even go onto the hard drive – it goes into the BIOS itself, and you would never know. As a matter of fact there are virii that run under windows that are able to do this even without a third party having physical access to the machine.

    There is no trust in present day systems. I know how these machines are made, I know about the software that runs on them – and I know how very little they may be “trusted.” I have the entire hard drive encrypted and yet a simple flick of the wrist at the wrong time can mean copying “private” data into a “public” space and I might never even know it – because the machine is too stupid to know what is “private” and what is not.

    If this were a trusted platform, guess what? Even if root authority X wanted to access the data created by the software running under rtoot authority Y they couldn’t because they are locked out just like everyone else. If you don’t want to trust root authority X then don’t use their software – just use the software from root authority Y, or RA Z, or generate your own RA key and don’t trust any of them. Of course you won’t be able to use the porograms (or data) locked to root authorities X, Y or Z – but that is your choice to make. If you feel locked out start up your own service and get other people to trust your root authority, then you can all live by whatever rules you agree.

    Unfortunately you can’t have both. If a third party can deny speaking to me unless I run the exact software which they have approved, I can be forced to use specific software or stay away.

    This already exists. Go to real.com and try to subscribe to the “24/7 broadcast” of Big Brother – or ABC news, or any of the other content they offer. Are you using a Mac? Linux? No Big brother for you.

    How many websites have flash animations for navigation? I HATE those things and I dislike flash, so I generally cannot access those sites, either.

    What about videogames? I have a copy of American McGee’s Alice I bought back when I was still using Windows and, despite the fact Alice was written for Windows, I was never able to get it to work because I wasn’t using the right Windows. Two years I’ve had that stupid disk. All I wanted to do was play with a gothic Alice in Wonderland and even the people who published it wouldn’t help me unless I would agree to run Windows 98.

    Those barriers you describe already exist and they have been part of computing as long as computers have existed. You could not run SCELBI BASIC on your KYM1 no matter how much you paid for the paper tape, and you cannot play a PSP movie DVD on your laptop – and I have yet to hear the first complaint about that.

    What would stop a company requiring you run IE to access their website?

    Plenty do already. Write them a nasty note. Or find the informatin elsewhere. It still wants to be free, you know.,.. and it will. if it matters.

    I can see from your arguments that you believe TC to be the solution to online cash. I don’t …

    And you know of a way to do this without DRM and without paying five to fifty percent of every transaction to a money changer?

    There are plenty of businesses already that cannot use paypal or accept visa or mastercard because of religious doctrine based pressures upon the credit banks that do business in the US. This is not a “what if” and it’s not causing some imaiginary “chilling effect” – it is legitimate entrepreneurs complying with local laws but being denied a competetive online presence solely becausethe US bank system objects to some aspect of their business. The only alternative for them is to use a barely reputable service like e-gold where buyers and sellers alike are charged ridiculously high transaction fees.

    And the only reason for any of it is because you and I do not have any way of engaging in direct commerce save for me stuffing valid currency in an envelope and mailing it to you and me trusting you to deliver the goods as promised.

    I simply don’t want to be dictated who I have to trust to trust my cash.

    Who do you trust now? Visa? Paypal? They can (and do) change the rules at their whim and you have little chance of recovering the fees they add when they do. If you earn 100K a year that might not be a big deal but plenty of people do not earn that kind of cash. The people who could benefit the most from a system of direct ecommerce likely cannot even get credit and so are excluded from all of it.

    There is no choice right now. If you participate in online commerce you are bound hand and foot by the credit banks and the agenda of whatever regime happens to rule the US.

    If you don’t want to trust root authoiry X then choose root authority Y. Or deny all root certificates except your own and live on an island. DRM doesnt mean the “information” that already exists in the clear is going away and you will always have that.

    But it is undeniable the lack of trustowrthy DRM is directly responsible for less creative expression in this online world – both because of Hollywood presently opting out of participation and because of those artists who would love to participate but cannot because they are locked out of the world bank. I could give a shit less about Hollywood, but I want to hear what those people locked outside the system have to say.

  • http://www.commonsmusic.com Commons Music

    Y’know, poptones, I’m kinda curious myself who believes they are being “locked outside” because of no reliable DRM (outside of Hollywood, that is). Anyone have any thoughts on that?

  • Peter Mogensen

    Why can you not trust your computer just because oyou agree to allow a third party to certify that parts of it work as advertised?

    Because, that third party might only want to certify specific programs for certain tasks, which remove the freedom I have now as a consumer to choose another program. Thus I might be forced to use programs I don’t trust or complete refrain from using my computer for some tasks.
    It doesn’t matter if I have read every line of source code running on my computer. What matters is that I am free to choose software from who ever I trust to produce good software.
    The third party might even only certify a specific version of some software, which will prevent me from fixing bugs.

    How do you know you can trust the operating system you use now?
    Doesn’t matter. What matters is that if I loose trust, I can change my OS.

    If you live in the US
    Fortunately, I do not. Anyway… I would much rather have such powers reserved for the police than for some industrial consortium.

    I know how these machines are made,…
    So do I.

    If this were a trusted platform,…
    For the pusposes of securing your data so you can trust them, it would still be a trusted system if you owned the endorsement key. As I said in the beginning, trusted computing has its uses. The problem is who owns the keys.

    If you don’t want to trust root authority X then don’t use their software – just use the software from root authority Y, or RA Z, or generate your own RA key and don’t trust any of them. Of course you won’t be able to use the porograms (or data) locked to root authorities X, Y or Z – but that is your choice to make. If you feel locked out start up your own service and get other people to trust your root authority, then you can all live by whatever rules you agree.

    I’m glad we agree. This will be the effect of a TCG infrastructure.
    Consumers will have to use the software they are told to use however bad, insecure, spyware-infested or bugged it may be – or – they can just choose not to use their computer for any copyright related acitivities on the Internet.
    I find it very naive to believe that an alternative RA would survive in the market.

    This already exists…
    No. As long as reverse engineering is legal you always have the choice to make it work. You can’t compare that to incompatibility protected by trusted computing.

    Those barriers you describe already exist and they have been part of computing as long as computers have existed….
    No… this is not the same and if you base your defense of TCG on this, we will never agree.
    Until now reverse engineerig to achieve interoperability has been legal. Now we have DMCA, which for some vaguely defined class of systems makes it illegal, but with TCPA we will have a digital infrastructure where it is not only illegal, but also technical impossible (up the the strength of the cryptography and hardware) to make an interoperable system with the explicit permission of the RA.

    About cashWho do you trust now?
    I trust my directly or indirectly my government. This is the only place such an authority should be placed. Not with a self proclaimed insustry consortium. Actually in Denmark I suspect it would be illegal for such an enterprise to start using their TCPA infrastructure for cash. You need a special permission to run a banking operation.
    If some bank abuses my trust, I can choose another. I will not be stuck with a specifik endorsement key in my hardware.

    I don’t buy your way of thinking.

    You suggest two scenarios:
    1) A world with TC where I wont be a Hollywood customer because I don’t use the software they want me to.
    1) A world without TC where I can’t be a Hollywood customer, because they have “opted out”.

    I don’t believe that 2 will happen, but either way, I would prefer 2 over 1 any time.

  • http://www.jan-peters.net Jan Peters

    How do you know you can trust the operating system you use now?

    Use Mac OS X and you can always trust your OS!

  • http://www.farceswannamo.com Dave W.

    Somebody above wanted musicians to weigh in. I, myself, have written a few hundred songs, with the kind help of my band. FWIW then, I second what I said above about Terminatror X and YoYoMa.

    Fur those that need further proof of my musical genius, please go to:
    http://www.farceswannamo.homestead.com/download.html

    BTW, my original comments on PE (in another recent thread) were occasioned by Ms. Rosen’s query for examples where too much intellectual property had hurt art. Whatever else my analysis may prove or suggest policy-wise, it is still a valid answer to Ms. Rosen’s original question.

  • poptones

    Use Mac OS X and you can always trust your OS!

    I hope you are joking. Apple went with intel because the next platform will be built around TCPA. Apple’s dev kits already have TCPA hooks in them and the next processor will allow a machine to run multiple virtual machines in secure fashion.

    Or is TCPA here ok just because it’s delivered by a giant corporation that starts with the letter A rather than the letter M?

    Consumers will have to use the software they are told to use however bad, insecure, spyware-infested or bugged it may be – or – they can just choose not to use their computer for any copyright related acitivities on the Internet.

    How many times does this need to be thoroughly rebuked before you get it? Apple already is shipping DRM systems. They have sold Millions of tracks that are locked up in DRM and yet not one track at Magnatune or CD Baby has been diminished because of it. If a musician wants to publish a song locked up in encryption so tight no one can access it that is her right. It is your decision whether or not to purchase – to make part of “your culture” – that music no one will ever hear.

    Culture is not something inflicted upon us. It is your choice who to reward and who to rebuke. If others wish to reward the musician who sells music no one will ever hear it is not your right to deny them their right.

    Regarding the rest of the business on TCPA… I believe it clear you (like most) do not understand how it all really works. There is no single “root authority” – a machine can have dozens of processes all keyed to their own root authorities. As systems are now this is primitive and insecure, but the next gen processors will have multiple cores, integrated encryption, and the ability to run multiple virtual machines – you may have linux and osx and windows all running at the same time on the same machine. Each workspace will be allowed to interoperate through shared communications channels. How those workspaces and the applications within them interoperate is entirely up to the keyholders. Software makers will still have to compete for functionality and features just like they do now.

    So far as the red herring about spyware… well chief, there are laws protecting consumers from this sort of thing. But thanks to the utterly insecure platform most use now it is both easily installed and easy for those who infringe upon individuals to hide.

    You just said you wanted to trust the government… well, there it is.

  • Peter Mogensen

    @poptones

    I agree with your view on the Apple situation.

    How many times does this need to be thoroughly rebuked before you get it? Apple already is shipping DRM systems….

    You haven’t “thouroughly rebuked” anything. It’s seems you don’t want to listen to what I say. You can’t compare the current situation of DRM (iTunes etc…) to a TC controlled infrastructure.
    I completely agree that if a musician want to crippled his product in a way which makes it unusable it’s his right.
    That not my complaint. My complaint is that I in general will have to allow a third party to control my computer to participate in digital infrastructure.
    I can do fine with out iTunes or Hollywood, though today it’s actually still possible to enjoy digital culture without being dictated a specific computer product. Thnaks to DVD-Jon I can actually play the DVD’s I buy and the songs on iTunes I can buy other places. In a TCPA world there’s no guarantie that I will not be required to run specific “secure” software to – say pay tax or sign up for an education. As soon as the infrastructure is in place there’s no guarantee what it will be used for.

    If others wish to reward the musician who sells music no one will ever hear it is not your right to deny them their right.

    I resent that suggestion. I’m not denying anyone their right to pay musicians. I’m advocating consumer political awareness of trusted computing. It might not be the case in the US, but in Denmark we actually have strong consumer protection. Consumers should not need to aquire detailed techincal knowledge about TCPA, they should be protected from abuse of their lack of knowledge when they buy computers.

    Today copyright gives you the right to correct errors in software you buy. Unfortunately, with TCPA you migh end up in a situation where you have bought a lot of music only to find that the program needed to play it has a security flaw. Today you are allowed to fix it. With TCPA you’ll have to wave goodbye to your music collection if you do.
    Also… With TCPA you might be forced to re-purchase all you music if you want to change supplyer of software. Or if you want to play you music on a newly acquired gadget. I don’t like that. I want musicians to be payed, but one a piece of music i s bought i don’t want the musician to poke around in my private life deciding how I play it.

    I do understand how TC works, but you don’t seem to understand that I don’t believe in your “take it or leave it” world.
    Of course there can theoretically be more RAs. I could even set up my own, but who would trust it and what good would it do me. Ultimately trust originates in the endorsement key and that’s not my key. I could of course generate it my self, but as the spec says – that would be of limited use outside my home.
    In the end – regardless of the number of RA – the result will be that digital culture is reserved for those who obey a limited set of authorities (most likely one), and you say that if I don’t like it I can just stay away.
    You should know that that approach will not protect consumers. They have no chance of knowing the implications of the techincal details in a product. A good example is that for years the record industry has been selling defect CDs under the label “copy control” and most consumers don’t know that it’s not their playing equipment which is the problem, it’s the “CDs” not being “CDs”, but (as Philips but it) “silver discs that aren’t”.
    This is absurd abuse of consumer rights (selling defect products), and of course consumers could just “stay away” … but mostly they don’t. Because they don’t know what is happening.

    In much the same way most consumers will run the software they are told because they don’t know better and when it starts misbehaving they won’t have any choice.

  • Peter Mogensen

    Oh… and about spyware. What makes you think that big companies with certified “trusted” applications would not include features which qualify as spyware?

  • http://gnuosphere.blogspot.com Peter Rock

    Peter Mogensen:

    What makes you think that big companies with certified “trusted” applications would not include features which qualify as spyware?

    Good question.

  • poptones

    Oh… and about spyware. What makes you think that big companies with certified “trusted” applications would not include features which qualify as spyware?

    Ummm… because that is now illegal and it would cost the company (and its shareholders) Billions in fines when the holes were discovered?

    So do both of you now use linux or BSD? And I take it you have audited the code before compiling it yourselves? And what machine did you use to compile your carefully audited operating system? Did you audit the compiler from which you generated your operationg system? Are you sure that compiler wasn’t backdoored?

    Today copyright gives you the right to correct errors in software you buy.

    No it doesn’t! Not even a little! If you buy windows XP you are trusting Microsoft to a) behave in your best interest by not selling you an operating system full of backdoors and b) to fix the errors in it and make those fixres available to you – because you do not have the information required to fix them yourself NOR do you have the license to do so. And despite their lip service to openness with the darwin code the same thing applies to OSX – and even more, as Apple won’t even allow third parties who figure out how to alter the desktop functionality without rewriting the core code to do so.

    with TCPA you migh end up in a situation where you have bought a lot of music only to find that the program needed to play it has a security flaw

    And so, you do not buy music that is wrapped up in DRM. There is still choice. If there is any integrity at all to this “free culture movement” then there will always be choice.

    My complaint is that I in general will have to allow a third party to control my computer to participate in digital infrastructure.

    We already do. In order to participate in commerce you have to “hire” the services of overpriced banking authorities. They both control the gateway (no credit, no soup for you!) and are free to set the fees at whatever they want because there is no competition. This oligopoly directly controls functionality of your computer. They do so because your computer is not trusted – they control the trusted infrastructure that allows you to transact business. Every time you are using their service you are allowing them to control functionality of your machine. This is not called “the web” for nothing; your machine is only one small part of a massive distributed computational grid.

    DRM will allow this control to be placed more directly under your control. Instead of paying for a banking service to provide trusted infrastructure we need only a service that will audit a segment of our machine and vouch for its veracity. That auditor does not need to know about every transaction – all it needs to know is machine 1233456 is running a state machine it can certify to be trustworthy.

    This is how you enable peer to peer currency exchanges; trustworthy DRM is the only way we can move onto that plane.

    But it seems you do not believe in the very ethos you espouse. “Freedom” is fine only so long as it is enforced by a complete inability to make things non-free.

    Life may be great on the commune, but forcing everyone to remain there against their will is not freedom at all. DRM provides the tools we will use to tear down that wall.

    Wir bin alle inhaber. Solidarnosc!

  • http://www.ecourier.co.uk hugo
  • http://gnuosphere.blogspot.com Peter Rock

    Poptones:

    “Ummm… because that is now illegal and it would cost the company (and its shareholders) Billions in fines when the holes were discovered?”

    I was kind of predicting some response like this. But you see, Poptones, the fact that spyware is “illegal” is not enough protection.

    The only solution is free software – that is, free in a ‘gnu’ sense as price is not a factor in this issue. Free software is the only guarantee that, in time, protection will be granted. If someone writes malicious code in a free program, it will be exterminated – and perhaps very quickly depending upon the importance of the said software. Yes, malicious/vulnerable code can (and often does) exist in free software, but its nature means that healing is to follow closely behind. With non-free software you must forever “trust” your code in the hands of a few people who have access to an environment that is ripe for abuse (not only that, but people who are bound by law to act in a way that maximizes profit – not your experience as a computer user). In fact, over time, non-free software can become even more corrupt due to its secretive nature.

    One of the most tragic happenings in the USA at this current time is the lack of people who understand this simple fact.

    If I recall, the US government has actually sanctioned the use of proprietary software to conduct e-voting. Personally, I think e-voting is wonderful. But until all technological aspects of e-voting are governed by an open/free infrastructure, any ‘democracy’ conducted using these machines is dead in America. The specifications of not only the hardware but the software as well must be open to public scrutiny. As far as I understand, the code used to run these machines is only inspected by a few individuals outside of the for-profit entity that created it in the first place. You say “when the holes [are] discovered” – but who says they will be discovered? Why waste time creating some elaborate scheme of checks and balances in an attempt to retain integrity when all you need to do is pay a competent group of university students/experts out of public funds and by law ensure that the source code created is open for the world to see and comment upon?

    Poptones – do you really believe that if you wrote some code that ‘rearranged’ the voting results to favor a certin candidate and put it into the machines that accept the vote for the next president of the United States of America that you would get away with it when the source code is then available for the whole world to see?

    Now what if that code was kept secret by only yourself and a few others who helped you write it (which is currently the status in the USA)? And, you knew ahead of the time which professors/experts were going to comb over your work intented as a ‘check and balance’? What might (and ‘might’ is all we need no matter how slight the possibility) one do in such a situation if approached by a ‘key figure’ who asked you to write a little loop that activated if a certain candidate was ‘behind in the count’?

    This latter scenario is ripe for corruption and abuse. The former – although obviously not 100% bulletproof (code is code and can be faulty even without intention) – is as close to a perfect electronic system as you can achieve. Do you think it is by accident that this happens? Witnesses for cheksum and instant tallying can help guarantee that the software the public sees on their own time and pace is the software the public uses. I’m actually shocked that some people vote on these machines who are run by Diebold and other like-corporations. You think “fines” are going to stop corruption? Are you serious?

    Do you realize that corporations pre-estimate/calculate how much they believe it would cost them in fines in order to make a judgement call on whether or not they will take a certain course of action? Do you realize that GM chose to build their 1979 Chevy Malibu in a way that increased the likelihood of death because it saved a few dollars per car even if a few people died? Fines are not the complete answer although I am not opposed to them.

    Don’t get me wrong – I think the fact that spyware is now officially illegal is great. But you don’t fight code only with the law. You fight code with code as well. And the best scenario for that is FLOSS (Free/Libre Open Source Software). Let the world take care of you – not “the corporation you can trust!”

    Perhaps you didn’t hear of this, but that is maybe because it went so smoothly – check this out.

    You want trust? Then don’t hand it over.

  • poptones

    DRM is inevitable. Contrary to what you seem to believe, DRM doesn’t have to mean proprietary.

    You fight code with code as well. And the best scenario for that is FLOSS (Free/Libre Open Source Software). Let the world take care of you – not “the corporation you can trust!”

    Then get busy and help pressure those FLOSS corporations to make sure “the open community” doesn’t get locked out of the future.

    Sitting on your hands and holding your breath like an angry three year old is the surest way to make exactly that happen. It is time for “this community” to grow up.

    Don’t say you weren’t warned.

  • http://www.commonsmusic.com Commons Music

    DRM will allow this control to be placed more directly under your control. Instead of paying for a banking service to provide trusted infrastructure we need only a service that will audit a segment of our machine and vouch for its veracity. That auditor does not need to know about every transaction – all it needs to know is machine 1233456 is running a state machine it can certify to be trustworthy.

    This is how you enable peer to peer currency exchanges; trustworthy DRM is the only way we can move onto that plane.

    poptones, I’m not aware of any services that would (or could) work like this, either that currently exist, or are in development. I’m curious about what programs or services could do this? Are you aware of any? I’d find them very interesting.

    Also, you didn’t answer my prior question: Why do you believe the DRM authority would be any more reliable or secure or trustworthy than, say, Paypal, or a bank, or what have you?

  • poptones

    CM, I do not know of any services like that because it is presently impossible for them to exist. Any such platform depends entirely upon a trusted hardware platform, and at present we do not have one.

    And the sad truth, as should be obvious now, is that we will never have access to such a platform so long as “The Free Community” and it’s “leaders” remain so blinded by these petty disagreements over copyright. If one were a conspiratorial sort one might think the RIAA and the MPAA are suing girl scouts in order to distract everyone’s attention from the greater issues surrounding the coming of DRM and how its infrastructure will play to the vested corporate interests.

    Hmmmmm….

    If we do not embrace DRM and take strong leadership roles in its development we will forever remain sharecroppers on the virtual plantation.

  • three blind mice

    Sitting on your hands and holding your breath like an angry three year old is the surest way to make exactly that happen. It is time for “this community” to grow up.

    c’mon poptones… you have done a great job arguing your points in this thread. you don’t have to go here.

    81 comments in this thread. that’s a healthy discussion. Ms Rosen is to be congratulated for stirring up the pot with her initial question. but this thread has derailed so many times it is hard to follow.

    the general recurrent theme is however clear: there are some who believe that the centuries old ideas of intellectual property rights and protections spur innovation and that absolute freedom bounded by infringement is an optimal compromise. there are others who believe that these ideas are no longer valid in the 21st century, that intellectual property rights are an anachronism when bandwidth is large and reproduction costs approach zero.

    in essence all of this is just another way of decscribing what thomas sowell coined as “the conflict of visions” – the disagreement between the perfectability and imperfectability of mankind.

    we believe that technology should be built to accomodate human nature, others believe that architecture can improve human nature. there is perhaps some truth to both.

    we accept that some people will never agree that their vision is not the correct one. in sweden we still have unreconstructed (albeit relabeled) communists in vänsterpartiet who in their heart of hearts believe that save for stalin, lenin’s ideas would have worked: nothing, not the gulags, not the decades of environmental and economic destruction, and not even the worldwide collapse of communism will ever convince them of the contrary.

    so it is here. to some people copyright is evil and anything associated with it is the tool of the devil.

    poptones, do not become frustrated when you fail to get support from the commons-ists; present your case, make your arguments, provide information and accept that some people will be persuaded and others never will.

    this is actually a good thing. history teaches us that when any one vision excludes the other, bad things usually happen.

    balance, compromise, and moderation is the only one-size-fits-all model that works.

    DRM are coming (we think, like the three blind mice, that the noun is plural) that is clear, but DRM have to be moderated through careful crafting and application of of the law. the DMCA is a good idea, but it is also a hamfisted application of law. studies and reviews SHOULD be a permament part of all new legislation, but fear of not getting it 100% right the first time should not prevent new and necessary legislation from being introduced.

    enough for a sunday morning. keep up the good work everyone. it is still a joy to read ALL of the comments here.

  • http://www.commonsmusic.com Commons Music

    Yes, but poptones, you’d think someone, somewhere, would be in development of this if it was feasible. But, there always has to be someone doing the actual transaction backend, which would be the DRM service.

    I’m not sure how trusted computing would, in any meaningful way, create such a system. TC is built on verifying hardware and software and things, but since DRM as a whole is so easy to get around, even with TC, I’m not sure this is even possible.

    So what we’re left with is another monopolizing agent, namely whomever would be doing the monetary transactions.

    Which leads to another question: If you’re freed from banks and the like, how is the money stored? Is the access viable from ATMs? Who issues cards? Where does the money come from? Does this mean everyone would be their own bank in a way?

    I’m sorry, I just don’t see that happening. I’m not sure its even possible to do something like that. There would have to be whole institutions setup to transact money and credit cards and check processing systems. To this I, again, ask the question: Why do you believe the DRM authority would be any more reliable or secure or trustworthy than, say, Paypal, or a bank, or what have you?

    Even if this were possible, you’d still be left with the issue of how to process money. There would have to be intermediaries, which would likely begin as monopolies themselves, and be little to no different from current systems already in place (like Paypal, traditional banks, etc).

    Am I misreading what you’re saying? I just don’t see your idea of what TC will bring at all possible, let alone likely.

  • Peter Mogensen

    @poptones

    You keep arguing that I can’t trust open source systems today. You’re right. Backdoors could exists. (and examples have been seen), but I can put trust in that extensive peer-review will eventually reveal them, and I could valuate that trust more than the trust your are advocating TC would give me.
    The point is still, that I’m free to choose.

    Anyway… You seem to have missed my first comments that I actually find the techonolgy usefull from a security standpoint, but that I could get the same security if I controlled the endorsement key myself. It’s not the techonology I’m against. I don’t fear techonology. It’s the potential of a infastructure, which could be used to enforce incompatibility and consolidate monopolies and the privacy issues that would bring if people looses the free choice to choose their own security policy. I know, you’d say that the choice is still free and that I could just take-it-or-leave-it … but I don’t believe that the world works like that. I could personally live fine without Hollywood, but how should I explain to my kids that our family don’t participate in that area of digital culture, when all their friends in school does?

  • poptones

    CM, you ask the best questions. Thanks.

    I do know Mr Clark of Freenet fame (and his cohorts) have been working on a means of “distributed trust” and I do believe something like that will work – once we have in place a means of wrapping up code behind encryption locks.

    Again, I don’t believe people are quite clear on how TCPA is envisioned. When one says “root authority” that is not “root” like “root user” – it is “root” like administrator only of a portion of the whole. It is “root” like the root of a tree, but every computer will be home to an entire forest. Microsoft will be a root authority and Apple and (if they get on the ball and do the right thing) Novell and Redhat and Ubuntu – but also Real and Macromedia and Adobe will be root authorities. They will have their sections of software under their control – and how Photoshop interacts with an image imported from Windows Media Player will be up to the terms negotiated between Adobe and Microsoft. Microsft may, for example, say “you can import 500 frames of video into Premiere from a protected film but you may not save it unless it is transformed in some way” whereas an untrusted application may be allowed only to capture a number of individual frames, or perhaps be allowed those same 500 frames but only bearing a watermark.

    So, locking out “Hollywood” may mean locking out Real, and Macromedia, and Adobe, and Microsoft and Apple. All these entities will be competing to provide you the most compelling list of features they can negotiate with the studios. “Root authority” does not just mean one corporation (although it will mean only two operating systems if we do not get some Free software representation on the TCG voting board).

    So, let’s pretend the community really does get its act together and establish some meaningful presence in the TCG and we are able to run at least a couple of “trusted” linux distributions. So long as the kernel remains intact and able to perform its audits as required it can provide the secure path from keyboard to disk to screen and sound (as all these are kernel modules). Does this mean the entire desktop is trusted? No, absolutely not – but it doesn’t have to be.

    More importantly, though, we can use these tools just as the corporate entities do. One can expect this to be another area of competition – for example each userspace can easily be protected behind an encryption key, and within those spaces one can just as easily say “do not let the data from folder X be copied or read without confirming with me first via password verification.”

    And, because these are applications and data we own those other appications won’t care – it’s our data, after all, and it would be stupid from a business sense for Adobe to not allow us to edit our own files.

    So, there is nothing to prevent us from creating applications which we may share with others – like protected chat clients, secure file sharing applications (ala WASTE), etc. We can employ all those hooks to the secure infrastructure just like everyone else and it is up to others to decide for themselves whether or not to trust us.

    At that point there is nothing at all to prevent us from developing peer to peer applications that carry with them their own root authority. That is, I (or my community) generate the application and share it with you; as soon as your machine negotiates a secure connection with mine the application is transferred into your machine.

    Your machine is linked only to my private key; the first time it is run it generates its own root CA, and any friends who trust you then download the application keyed only to your key. My machine does not have the “authority” to to deny any machines keyed from yours. And, likewise, and machines keyed to your friend’s machines will not acknowledge your machine as root authority.

    In this way, no one person can “turn off the network.” The way you protect the network is via distributed trust. If you make part of the code itself a ranking mechanism – perhaps like the system ebay has on its site – then every individual carries with them their own online “credit history..

    How exactly one creates that distributed authority is still being devised. As I said, much of it depends on having machines that can be trusted, and we don’t yet have that. It can be modeled, but the only project I have heard of (so far) is the distributed trust model the freenet folks are toying with. Now, I am no authority on cryptography or randum numbers and genetic algorithms, but I am very confident some method or devising this distributed web of trust is possible.

    So, that leaves the details of commerce.. and that’s easy.

    I have sold on ebay computers, clothing, and most recently a Beatles 45. In return I was transferred paypal dollars. Now, because I had a bad expeience with them long ago (it took them two years to finally send me a check for a measly twenty bucks) I do not “trust” paypal to link them to my bank account. That means when I get money from an ebay sale I have to either spend it on other ebay crap or wait until I have enough money in my account it is worthwhile to get them to send me a check.

    Paypal, for me, is terribly inconvenient. But I participate because there is no other choice.

    Now, what is to stop one of my friends, who may plan to make an ebay purchase in the near future, from just “cashing” my paypal money? To paypal it’s just another transfer – I send my buddy $200 paypal plus a small sum to cover his paypal recipient fee, and my buddy gives me a stack of twenties.

    You can do the same thing with a p2p “wallet.” Because the computing infrastructure is now trusted you carry your money. You “install” an empty wallet and then you set about filling it up.

    How do you fill it up? You start with whatever currency you can find – whether you get an email transfer from paypal, or perhaps a meatspace friend will transfer you some money from his wallet in exchange, or maybe you set about it the honest way and earn it by selling music, porn, programming services – or maybe you just hit up your friends in IRC and panhandle it. It doesn’t matter how you do it, and whatever you have to offer is given value based upon the old fashion system of “whatever you and I can agree it’s worth.”

    Because the system is distributed peer to peer, everyone competes with each other to establish that value. It is not at all hard to envision entire “virtual eschanges” building up around this – day traders who spend their days in high pressure chatrooms trading egold and paypal and warcraft assets… an entire virtual stock exchange could spring up completely outside the bounds of any single government.

    The key is getting the trusted infrastructure in place. Until we have that, none of the rest of it is possible.

  • poptones

    PR, TBM just pointed out to me what was essentially a grammatical error on my part. When I said “you.. sitting on your hands like a three year old…” I was not speaking of you personally.

    I do not think the analogy inappropriate, but it was not meant to describe the attitude of any one individual but more of the way “the community” responds to any notions of TCPA or DRM. I do believe if you care to go to any “open software” community of your choice and openly advocate the adoption of DRM, you too will quickly see the truth in my descriptive imagery…

  • Tim Sackton

    the general recurrent theme is however clear: there are some who believe that the centuries old ideas of intellectual property rights and protections spur innovation and that absolute freedom bounded by infringement is an optimal compromise. there are others who believe that these ideas are no longer valid in the 21st century, that intellectual property rights are an anachronism when bandwidth is large and reproduction costs approach zero.

    TBM, I think that this may be true at the extremes, but I feel that it is possible to be legitimately concerned about DRM without believing that intellectual property is an anachronism (and implicitly that content should be free). In my mind, the issue is primarily one of control.

    Currently, once I buy a CD, it is mine. I can do with it what I like. Now, I agree that there are some uses that are and should be illegal and immoral: I can’t make copies of the CD to resell, I can’t stand on a streetcorner (real or virtual) giving away copies of the music, I can’t use the music from the CD as the soundtrack to a movie (or at least, not if I intend to distribute the movie). However, there are many things I can do that are important parts of my rights as a content-user: I can make a copy of the CD for my car, I can rip the tracks from the CD to listen to on my iPod, I can back up the CD in case my original gets scratched, lost, or stolen, I can use a few tracks from the CD in a mix CD that I burn for a friend.

    Now, some of these things may not be technically legal (particularly the last one), but I hope that we would all agree here that they are relatively harmless and not done with the intent to defraud the content creator of money. Content creators should have pretty good control over the content the create, but they shouldn’t have perfect control. Not only does that stifle fair-use, but it distorts the traditional balance between users and creators.

    Certainly, I agree that something needs to be done to fix the current situation — content creators have so little control that it clearly is stifling the distribution of high quality content online. But what worries me about DRM schemes is that there is the potential for them to shift the current system, where we pay once for the content and then can use it how we like, to a system where content users have to pay once for each use of the content, i.e., I can buy a music track online to listen to on my computer, but I have to buy another copy for my iPod and another copy for my car and another copy for my work computer. It seems clear to me, based on past actions, that some organizations that control the content would like to create that sort of regime, where we only rent content, never own it. So while I agree that DRM could be useful and important for spurring content distribution online, how do we prevent a future where rights holders can dictate how, when, and where we enjoy content we legitimately purchases (a future, I might add, we are quickly sliding towards)? Trusted computing seems, to me, to give far too much control to the content creators, thus hastening our slide towards this future. In particular, trusted computing could be a very powerful form of software lock-in, if the ability to play legally purchased content depends on using a particular piece of software. DRM could potentially function as a kind of proprietary format, preventing competition in software media players, which as more and more content moves to the computer, can only be a bad thing for the consumer.

    I might add that the future where all content is available illegally online, rights-holders have no control over the distribution of their content, and content production slowly dwindles as rewards for creating decline is also not a future I want to see come about., so I’m not arguing for some sort of anarchist free-for-all. I just think we need to be careful about giving anyone the means to exert near-perfect control over content.

  • three blind mice

    However, there are many things I can do that are important parts of my rights as a content-user: I can make a copy of the CD for my car, I can rip the tracks from the CD to listen to on my iPod, I can back up the CD in case my original gets scratched, lost, or stolen, I can use a few tracks from the CD in a mix CD that I burn for a friend.

    Now, some of these things may not be technically legal (particularly the last one), but I hope that we would all agree here that they are relatively harmless and not done with the intent to defraud the content creator of money. Content creators should have pretty good control over the content the create, but they shouldn’t have perfect control. Not only does that stifle fair-use, but it distorts the traditional balance between users and creators.

    excellent point, Tim Sackton, welcome to the discussion.

    you are, however, ignoring the difference between the ability to make exact copies and the ability to make pretty good copies. fair use developed under technology that did not enable the owner of an LP to make an exact copy. as good as that copy of Dark Side of the Moon was when made with a Nakamichi reel-to-reel it wasn’t as good as owning the LP. owning an LP still had value.

    once things went digital the copy of the CD you make for a friend IS as good. it is an exacty duplicate. once your friend has the copy you made for him, he has no need to buy a CD of his own. with digital scanners and hiqh quality printers, you can also make near exact copies of the printed material. this destroys the market value of CDs.

    we totally agree that fair use is a good and necessary thing. absolute control is neither practical, nor desired. the fair use statues exist for a reason and these reasons still exist. nothing here has changed.

    but the fair use statutes never envisaged that the purchaser of copyrighted media could make an exact, fault free copies of the original. (or that one could distribute exact copies instantaneously around the globe to people the purchaser does not personally know.) insisiting that fair use enables you to do so – or that the internet’s architecture should not be constructed to prevent this – is in effect claiming a much more expansive right to fair use than has ever existed.

    digital technology has changed the rules of the game

    this is where DRM, which would hinder exact copying, comes into the picture, but there are still people arguing that DRM a restriction on fair use. we say DRM restores the balance of fair use, but there are those argue otherwise.

    trusted computing comes into the mix because it enables DRM (and other things), but as the discussion above indicates, it brings with it other problems.

    the technical issues of DRM and trusted computing then become complicated by examples, such as the Public Enemy example, where traditional fair use issues are re-hashed. PE did not need to make an exact copy to run afoul of another copyright owner.. all they needed to do was to capture something sufficiently recognizeable of the original to make theirs a derivative work. this issue really has nothing to with technology, although technology makes it an issue happen more often. the creativity argument has also been taken on by those who want to use it as a way to avoid technological contraints.

    and on top of this, extensions in the length of copyright add another dimension to an already complex debate.

    the arguments, as this thread illustrate, quickly become a cacaphony of noise. it is very difficult to stay on topic because the different issues blend into each other so well.

    this is really complicated. even if you know something about it. even if you know a lot about it as many people on this board do. sometimes it leaves all three of our heads spinning.

    this is why we say a civilised, respectful, and open debate is so important. it is more important here than almost anywhere else because the issues are so diverse and demand a diverse participation. if people are intimidated or made to feel stupid, they are less likely to chime in and we are all less likely to listen to one another.

  • http://www.commonsmusic.com Commons Music

    In case anyone’s curious, a fascinating discussion occurred about DRM over at Dan Myrick’s website for his online series.

    A good presentation of issues.

  • Tim Sackton

    but the fair use statutes never envisaged that the purchaser of copyrighted media could make an exact, fault free copies of the original. (or that one could distribute exact copies instantaneously around the globe to people the purchaser does not personally know.) insisiting that fair use enables you to do so – or that the internet’s architecture should not be constructed to prevent this – is in effect claiming a much more expansive right to fair use than has ever existed.

    I guess the point that I was trying to make is that much of the discussion around DRM, etc, often seems to ignore the difference between copying and distributing. And I don’t think it is particularly important that digital formats allow the creation of perfect copies. The problem I see with making perfect copies is not that the copies are perfect, it’s that it opens the door to large-scale distribution, since the nth copy is just as good as the first copy.

    Even ignoring the issue of intent, should DRM prevent copying or prevent distribution? Obviously, those two issues are at least partially intertwined, and technically it may be impossible to completely separate the two. However, I would argue that fair use allows me to make a copy of a CD I purchased for back up purposes, or to burn a mix CD for my personal use, although I would agree that it doesn’t, in general, allow me to distribute the content that I have purchased (at least not anonymously to large audiences over the internet).

    My concern about DRM is that a side effect, whether intended or not, of preventing anonymous file-sharing may be eliminating a number of important fair uses of legally purchased content, in particular the ability to make back up copies and the ability to format-shift content.

    I realize there are a number of counterarguments to what I’ve just said:
    1) some people might not think fair use copying is that important, and so are willing to eliminate the ability to create copies of content for personal use in the name of eliminating the problem of illegal distribution.
    2) it could be argued that the market will sort it out, although I would argue that for the market to work, content providers have to be very up-front about what limitations they are placing on their content.
    3) perhaps there is a technical solution that would allow fair use copying but prevent illegal distribution — I don’t know enough about the technical aspects of DRM schemes to comment on this possibility.

    So there may be ways to make (almost) everyone happy. But I object to the idea that content users have no rights (not meaning to imply that anyone in this thread has taken exactly that position, but it clearly is at least the caricature of the position of the RIAA and similar organizations, and a position against which a lot of this debate is often framed) — it doesn’t seem any better than the position that content wants to be free and content creators have no rights to limit the distribution of their content. Nobody can distribution content and expect to have complete control over how it is used.

  • http://www.commonsmusic.com Commons Music

    Yeah, I’d have to agree that the “perfect copy” argument doesn’t really hold water.

    Here’s why:

    1. Despite all the DRM in the world, all it takes is one copy, and the entire structure of DRM is vanquished. The problem here is the internet, not DRM. And, of course, you can’t get rid of the internet.

    2. I’ve been researching something besides DVD rips: Theater camera copies. That’s where someone sits in a theater and records the movie with a camcorder.

    Now, this is hardly a “perfect copy,” but there are some spectacular cam screenings. One, of War of the Worlds, came from Russia (at least I’d imagine, since the opening credits were in Russian). There was a direct audio line into the camera (meaning the audio was not recorded by the camera mic), and it was setup from the projection booth (at least it appeared to be, since it was an audio line into it).

    At first, I was convinced it must be an early DVD rip, but it wasn’t. So all this talk of perfect copies is…well, not really relevant. An MP3 is not a perfect copy, nor is a rip from a TV show. Compression causes degredation, even though every copy after that is a perfect digital copy.

    But, the point is that, as long as you can point a camera at a screen and record it (and, despite all the pandering of the industry, this will always be possible), there’s no stopping the recording.

    3. When presented with the choice of a perfect, unprotected file vs. a file with protection, people will always prefer the unprotected file. Not only that, but a lack of an unprotected file causes quite a few people to simply not buy anything at all (Source: “[t]hirty-six per cent [of people to say DRM] influenced them not to pay for downloadable music”).

    That’s a huge percentage. So, it’s all something to consider.

    Mind you, I’m not saying DRM should be banned, only that the law should allow for technology to work this out itself. If DRM is effective, there’s really no need for a law. And if DRM is not effective, then there were already laws in place to stop copyright infringement.

  • poptones

    Can anyone manufacture cars and expect “absolute control” over how they are distributed? At least initially – ford does not have to worry about a girl scout in Eporia cloning their cars for the cost of electricity and competing with them for the Mustang market in Illinois.

    DRM can allow IP to carry with it the same attributes as physical goods. This is both mandatory and inevitable if the internet is ever to empower the individual user to all those things the corporations now enjoy.

    that DRM can allow individuals to be locked out of features we previously took for granted is not a fault of the technology, and if we allow this “problem” to become a barrier to our embracing it, all we will do is allow the corporations to claim complete control over it and set the standards for themselves.

    I hope I have made clear that DRM does not mean we must all trust a single root authority. If we take a leadership role in the creation of meaningful DRM then we control the standards and practices. Consider:

    A peer to peer system of commerce combined with embedded DRM in our own creations could allow us all to participate in a creative commons and doing so on a commercial basis. Instead of adopting the limited CC license one could embed terms right into the file – for example, “sampling of this clip is allowed in derivative works for the sum of 3 cents per copy second.” My rights management system automatically handles the distribution at that point – for every copy transferred the proper royalies are transferred from my “wallet” to the wallets of those licensed. If they are offline the transfer is queued on my system and it will keep trying for several days. where the money comes from to replenish those fees is my problem – I can seell my derivative works for a profit, or I can trade my work for world of warcraft gold or a laptop computer on ebay or whatever I want.

    There is nothing to prevent the old school publishers from participating in a similar system. This would encourage artists and their publishers to share even more of their works in a manner similar to that artists like Trent Reznor and Garbage and Jay-Z are now experimenting with – by not releasing not just the album, but all the individual tracks and loops they used to create it. You can create and remix all you like for your own enjoyment, and the DRM system automatically handles the task of distributing payments if you should publish the work.

    A distributed trust system would address all concerns. Those who wish to publish gratis will forever be free to do so, and those who wish to exercise reasonable licensing terms can also do so under the terms we, the people, have agreed upon by way of our community licensing terms. No Congress, no Verkovah Rada, no Parliament and no single finger on the off switch.

    It’s only impossible if we refuse to create it.

  • http://www.commonsmusic.com Commons Music

    poptones:

    It’s all well and good to envisage a utopia environment like that. But, personally, I think we’d do just as well with licensing terms set out in a license without the need to encode it.

    Also, such a wallet/soundclip/whatever DRM system is not currently in development. DRM works by encoding the whole file, not parts that make it up. A massive infrastructure and programming interface would have to be created for sound editing programs, not to mention the commerce systems that would have to be built around it. The development costs would be…well, quite impressive.

    Is it possible? Well, maybe. But even Hollywood doesn’t much care about the ability to remix or recreate, let alone investing in a system to do it. So who is investing? Are you part of technology group doing this? Has anyone considered it?

    Besides that, I’m not sure I’m comfortable with a world in which everything is so carefully tracked and catalogued. The last thing I want are more outside entities intruding on my computer, let alone individual artists.

    It’s a nice idea, but I don’t think it’s very feasible.

  • Tim Sackton

    that DRM can allow individuals to be locked out of features we previously took for granted is not a fault of the technology, and if we allow this “problem” to become a barrier to our embracing it, all we will do is allow the corporations to claim complete control over it and set the standards for themselves.

    True, the fact that DRM can be designed that takes away features/rights previously taken for granted is not the fault of DRM, it is the fault of those who designed the system in that way. And I would not argue against all DRM. I just think that there are certain rights that content users have that DRM should not be legally allowed to take away, and if a DRM scheme cannot meet that requirement, it is better to have no DRM than “too much” DRM, so to speak.

  • poptones

    Also, such a wallet/soundclip/whatever DRM system is not currently in development.

    This is where you are very mistaken. it is in development, and it has been for years. And when it arrives within Longhorn and no one within the free community has stepped up to participate in its development, the “free community” will have directly contributed to the realising exactly the scenario you all most fear.

    DRM works by encoding the whole file, not parts that make it up.

    Wrong. DRM works by embedding rights within the file and encrypting it as a means of protecting those rights. How the software that interacts with it is entirely up to the programmers and those who define it.

    A massive infrastructure and programming interface would have to be created for sound editing programs, not to mention the commerce systems that would have to be built around it. The development costs would be…well, quite impressive.

    The development costs of Linux would be… well, quite impressive.

    Making excuses accomplishes nothing. None of this is imposssible or even particularly difficult once the hardware arrives. But if we do not participate in its specification we will be locked out of that hardware and it will be a hundred times harder to reclaim the ground lost by us sitting on our hands and screaming “go away.” to the inevitable.

    …and if a DRM scheme cannot meet that requirement, it is better to have no DRM than “too much” DRM, so to speak.

    Except we do not have that option. Our only decision to make in this matter is whether we will own the technology, or the technology will own us.

  • http://www.commonsmusic.com Commons Music

    This is where you are very mistaken. it is in development, and it has been for years. And when it arrives within Longhorn and no one within the free community has stepped up to participate in its development, the �free community� will have directly contributed to the realising exactly the scenario you all most fear.

    Do you have more pertinent information on what, specifically, has been in development?

    Wrong. DRM works by embedding rights within the file and encrypting it as a means of protecting those rights. How the software that interacts with it is entirely up to the programmers and those who define it.

    Yes, but, currently no DRM system in existence (that I know of) allows individual portions of a file to be altered and retain the rights embedded in them, unless Microsoft is stewing on something…

    The development costs of Linux would be� well, quite impressive.

    Making excuses accomplishes nothing. None of this is imposssible or even particularly difficult once the hardware arrives.

    See, I still don’t buy it. Linux took a hell of a long time, but even it was based on Unix, which came from a massive investment. I’m just not sure the development costs would be worth the result, which may likely not want to be embraced by anyone in the free community. I would never want to attach DRM to my music or films, even with the supposed benefits of it. I don’t think the free community wants any protection systems on content as a whole, since they work mostly on trust systems, without needing a content backend to it.

    After all, trust is the entire point of the OSS/CC crowd, am I right?

  • poptones

    Linux did not “come from unix.” Linux “came from” minix which was a “mini unix” kernel. Linux has not spawned from unix, it is a re-interpretation of it. There is some legacy code in there but it is a tiny part of the whole.

    “Trust” may be the point of some within the crowd but what about that ‘freedom” stuff? what about the empowerment the internet is supposed to provide? What about overcoming the will of governments and all that stuff?

    Trust doesn’t put food on the table and people have to eat. And the only way for any of us to do that right now is with the permission of the credit banks.

    …currently no DRM system in existence (that I know of) allows individual portions of a file to be altered and retain the rights embedded in them, unless Microsoft is stewing on something…

    You again are confusing “files” with how the software interacts with those files. You are trying to put details on the painting before the sky is even on the canvas. A DRM system can behave however we specify it… or, the way things are presently going, however the Hollywood consortium specifies it.

  • poptones

    By the way: when windows 95 came out, linux didn’t really even have a desktop. when windows 2000 came out it had some desktops in development but they were so geeky linux was still considered just a server OS.

    Right now the linux desktop has features (like f-stop, and dashboard, and beagle and tomboy) that Microsoft is still promising to add back into Longhorn sometime down the road.

    We need to get a presence on the TCG.

    Professor, are you listening?

  • http://gnuosphere.blogspot.com Peter Rock

    Poptones,

    You seem to be saying – in essence – that TC/DRM is freedom and denying that supposition on my part means to deny complete, free (i.e. gnu) computing systems their rightful participatory place in the future of global technology.

    Is this correct? If not, please correct my misunderstanding (with my apologies) of your stated position.

    Hilary, what do you think?

  • poptones

    That’s pretty much it, Peter.

    Remember all that talk about “virtual reality” and videogames and ownerhip of property in-game and such?

    If there is no DRM, then there is no ownership. as we increasinbgly find ourselves moving into this space we will become completely dependant upon the “trusted” infrastructure of corporations.

    In this world without pervasive and trustworthy DRM we are presently in the process of becoming sharecroppers on vast privately held plantations. We increasingly exist only through “user licenses” and permissions and whatever lawlessness we can commit.

    Without DRM, corporations will own virtually everything.

    Welcome to the new century…

  • http://gnuosphere.blogspot.com Peter Rock

    Poptones,

    Declaring that “TC/DRM is freedom” is like an Orwellian declaration that “freedom is slavery”.

    I still don’t understand how a gnu system can work under your regime. Does not at least some software on a system (from firmware and up) have to be non-free in order for TC/DRM to work as intended?

  • Joseph Pietro Riolo

    Readers should know that Three Blind Mice do not have the
    correct understanding on fair use in the U.S. This does
    not surprise me because they are from Norway or whatever
    country in that area.

    Contrary to what they said, fair use does envisage that
    possessor of the copies of works that still have active
    copyrights can make exact copies of these copies. Fair
    use in fact permits one to make a full copy of a copyrighted
    work in very rare cases.

    Readers also should know that there are more limitations
    on the copyright holders’ rights other than fair use. They
    are listed in the first chapter of the U.S. copyright law.

    Whether DRM will recognize these limitations or whether
    DRM will suppress the copyright law through license remains
    to be seen.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

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

  • poptones

    Declaring that “TC/DRM is freedom” is like an Orwellian declaration that “freedom is slavery”.

    How ironic you should use such a metaphor.

    Without ownership, we are enslaved by the corporations who “own” the trusted universe upon which the online world depends.

    Does not at least some software on a system (from firmware and up) have to be non-free in order for TC/DRM to work as intended?

    Of course not. I use gpg all the time for my emails and that is completely open source. Every hard drive in my computer is encrypted – more than 500GB of data in a redundantly protected storage bank. if I shut down this machine and leave it, how long do you think it would take you to break into this protected data store?

    The code can be developed in the open and there is no reason we cannot have TCP system calls that allow for confirmation, via secure hashes, of a memory store. The kernel is still developed in the open, then compiled and transferred to other machine via a mutually trusted root authority. This root authority could be a single machine, or it could be a thousand machines across the grid linked as a single virtual machine that constantly audits each constituent computational “cell” for untrustworthiness.

    Of course it comes down to trusting someone or a group of someones – you already do this now every time you make a purchase online – or install linux (or a component package) from a CD or download.

  • Palle Raabjerg

    Peter Rock,

    That is my own impression of DRM technologies in general. One of my greatest misgivings with TCPA, is that it would supposedly require a non-free/closed module to be able to interface with it. Please correct me if I’m wrong poptones, but if you want a completely free system in the GNU sense of the word, this is impossible while using TCPA. Because if the code interfacing with the TCPA hardware was open, stripping the DRM from any content would be trivial.

    This runs counter to the “free software community”s definition of “free”. Contrary to what some may think, it is quite possible to run a system of completely free software today and not be seriously hampered in most other ways than not being able to run high-end 3D applications, which is mostly used for new games.
    I can even play DVDs legally in Denmark because of decss, as previously noted.

    The main reason I hate almost all sorts of copy-protection and DRM mechanisms is that they always require me to run some sort of non-free software, if that even exists. And no, I’m not satisfied with “just” having to use some non-free software. TCPA is no different, if I’m informed correctly. Any kind of meaningful DRM would require non-free software.

    You can’t just take principles from the physical world and artificially apply them to the digital/non-physical realm without consequences. That’s one of the main reasons some of us are going directly against it.

  • http://gnuosphere.blogspot.com Peter Rock

    Palle Raabjerg:

    if the code interfacing with the TCPA hardware was open, stripping the DRM from any content would be trivial.

    Yes, this is my impression too. Poptones, can you please clarify as to why this impression is mistaken? I didn’t understand your “gpg” and secured hard-drives response. I still don’t see how a gnu system (i.e. a completely free system) can work with TC/DRM.

  • http://www.robmyers.org/ Rob Myers

    “Intellectual Property” (actually copyrighted material here) does not require DRM any more than physical property requires locks. That is, there is no causal requirement. Not that burglars don’t exist. The property is a fact of law, not an effect of technology.

    DRM can cover non-copyrighted material as well. You can DRM anything.

    DRM can be used offensively as well as defensively. It can be used to expire, to erase, to track, to trigger. To reduce wealth as well as to -er- expropriate it. It’s not even like renting a house, it’s like a series of “Big Brother”.

    DRM will accelerate the gentrification of IP. Pleading for DRM for the corporations so that the little people can lock their kiddie photos just doesn’t work. It’s similarly bogus to the current pleading by corporations for perpetual copyright for artists.

    So DRM is unneccessary, expansive, destructive, social engineering. The few *personal* benefits that people plead for it (protect your kiddie photos, sell your terrible guitar music, be protected against the corporations that, um, make the DRM, have I missed any?) rely on emotional rather than reasoned argument. The arguments against it are based on technological, legal, historical and practical evidence.

    The pleading for DRM follows from corporate demands for it, it does not lead to those demands. There is no popular support or demand for DRM. If DRM did not exist, it would not be necessary to invent it.

    DRM may or may not be inevitable. But accomodating ourselves to it for fear of being on the wrong side of history will not improve whatever DRM we do get.

    But all this aside, do the maximalists really believe that DRM will be used to protect legally purchased music more than it will be used to to hide illegally downloaded music? ;-)

  • poptones

    Please correct me if I’m wrong poptones, but if you want a completely free system in the GNU sense of the word, this is impossible while using TCPA. Because if the code interfacing with the TCPA hardware was open, stripping the DRM from any content would be trivial.

    TCPA is still in development. And if this were so then it would be doomed to failure because such secrets will eventually come out.

    Even cryptography is not 100% secure. Cryptography only works so long as it is more work to break into the store than it is worth. By the way, it is important to note here this is exactly why the statements about content being forever locked away in DRM are fallacious. A decade ago it would take computational years to brute force 56 bit encryption – now you could do it in a matter of days. Content “locked away” today behind 512 bit encryption may, in a decade’s time, become just as trivially breakable. So, in the unlikely even that the original sources for a piece of valuable content are lost to the people of 2020, it is very likely it would take only a matter of hours for that content to be recovered fully from DRM’d archives.

    The point of DRM is to make it a practical impossibility for cleartext to be recovered from a file during that file’s useful lifetime. If I have 500 dollars in my e-wallet then what is the useful lifetime of that data? If this were the “me” who used to live just off Melrose I can tell you the “useful lifetime” of those 500 encrypted e-bucks would be only a matter of hours :)

    it is quite possible to run a system of completely free software today and not be seriously hampered in most other ways than not being able to run high-end 3D applications, which is mostly used for new games.

    It is possible but not likely. Unless you are running a five year old motherboard, no wireless support and no modem, then you are using non-free modules. Are you saying it is possible or that you are? You are trying to make the case for trustworthiness and I am pointing out Millions of linux users – even those who flail their hands wildly at the merest suggestion of TCPA – already trust corporations like Nvidia and Intel by installing sealed, proprietary modules on their computers.

    Any kind of meaningful DRM would require non-free software.

    Utterly false. In fact, any system that relies upon proprietary algorithmic secrets is doomed to failure (just like decss).

    Trustworthy DRM requires trustworthy software be deployed upon trustworthy hardware and that the trusted portion of the machine be periodically audited so as to prove that trustworthiness.

    The tools used to create that hardware and software, and the standards that establish it, can be every bit as open as (for example) PGP, GPG, DM-crypt, ssh, and the non-secret encryption protocols that power them.

    It is a non trivial problem, but it is solvable within those time limits – ie by the time an exploit is found in the present system, it has already been evolved so as to present new obstacles for the attacker to overcome.

    You can’t just take principles from the physical world and artificially apply them to the digital/non-physical realm without consequences

    Of course there are consequences. There are consequences to breathing and drinking water. There are also consequences to refusing to participate in the creation of an infrastructure which is becoming increasingly important to how we live our daily lives. You are worried about your “right” to rip madonna and I am saying that is a trivial concern given the world in which she shares that space with you is entirely owned by corporations.

    Without Digital Rights Management you have no rights to manage in this digital realm. You exist here only because the corporate owners of the infrastructure allow it.

  • poptones

    I still don’t see how a gnu system (i.e. a completely free system) can work with TC/DRM.

    Because the embodiment of that “free” system is protected behind physical locks. We can all define the algorithms and define the standards and then lock the state machine away inside hardware and encryption. Since the only “key” to the state machine now embodied in tha hardware is locked away behind a key known only to the machine itself, the only way to alter its functionality is to physically attack it. This is still possible of course – just as it is still possible for me to steal your car or lift your wallet.

    it is possible to do these things but not likely given the combination of physical difficulty and social and legal barriers.

  • rodander

    What I see here is a tremendous lack of confidence in the marketplace by some. Comments like “you have no rights to manage in this digital realm. You exist here only because the corporate owners of the infrastructure allow it.” and “e will become completely dependant upon the “trusted” infrastructure of corporations” (sorry poptones, yours were the easiest to find).

    But the point of any corporation is to make profit. And market forces will push the supplies to supply the products and rights that consumers will want and use. Maybe not fast enough for some, but the market will follow the demand, so long as a profit motive remains and so long as government stays out of the way. No corporation will exist very long (nor will its management remain) if it chooses to not meet market demands.

    And besides, we are the corporations now. Stock ownership is incredibly more diverse than ever before, both directly and through mutual funds etc. So lose the image of Cornelius Vanderbilt and John D. Rockefeller sitting around scheming on how to control the world. The market is in control — both the market for products and the market for equities.

    I am afraid that the real issue for many was expressed by Palle Raasjberg: “The main reason I hate almost all sorts of copy-protection and DRM mechanisms is that they always require me to run some sort of non-free software . . .”. To paraphrase : dammit, I just want everything now for free and with no restrictions.

  • three blind mice

    “The main reason I hate almost all sorts of copy-protection and DRM mechanisms is that they always require me to run some sort of non-free software …”. To paraphrase : dammit, I just want everything now for free and with no restrictions.

    that’s not quite fair rodander.

    it would be more accurate to paraphrase Palle Raasjberg’s comment thusly:

    The main reason I hate almost all sorts of copy-protection and DRM mechanisms is that they always require me to run some sort of non-free software and I do not care if this exposes copyright holders to widespread piracy.

    it’s not fair to accuse Palle Raasjberg of wanting to engage in piracy. this is the sort of mud slinging that turns people off to what you are saying. give him the benefit of the doubt that he himself is honest.

    it is however entirely fair to point out that what he wants creates an environment where it becomes impossible – or at least very difficult – to prevent piracy. this is something it seems to us that commons-ists simply do not want to honestly address.

    so throwing the ball to you, Palle Raasjberg, how do you justify that the benefit to you to use “free” software is worth more than the greater loss to society caused by widespread piracy?

  • http://gnuosphere.blogspot.com Peter Rock

    Mice:

    so throwing the ball to you, Palle Raasjberg, how do you justify that the benefit to you to use “free” software is worth more than the greater loss to society caused by widespread piracy?

    Whoa! Back the truck up.

    Are you suggesting that pursuing freedom causes people to break copyright law? You’ve tried to weigh freedom on the same scale alongside reduced piracy – which is absurd. You can’t quantify freedom!

    Freedom is of utmost importance and should not be sacrificed with an ignorant (yet well intentioned) ‘lock and key’ piracy reduction plan. What needs to happen is the emergence of an enlightened and revolutionary way of approaching copyright and artistic compensation – NOT “trusted computing” with DRM.

    What I want: Freedom, and an environment where piracy is not an issue because everyone already has access to digital culture created by artists who are compensated fairly.

  • rodander

    Mice, thanks. I’ll back off of my paraphrase to the exent that it paints Palle as wanting to pirate. He didn’t mean that, and I didn’t mean to mean that I thought he wanted to pirate anything.

    But he did make the point of not wanting to use “non-free” software. That obviously means he doesn’t want to pay a market price for what he wants to use — he wants someone else to do the work and give it to him (again, I will assume that he wouldn’t take it). So the debate comes down to price — anything above free (with total rights to do whatever with it, as you point out) is not acceptable to some.

    Let’s trust the market, instead. It has great power. People (including shareholders of corporation) like to maximize profit. Supply will follow demand, if permitted to and if incentive remains.

  • rodander

    Ooops — mice, you didn’t really point out the “do whatever with it” comment that I made. That’s on me. My bad.

  • Palle Raabjerg

    poptones:
    Hrm. You just forced me to read a bit more up on TCPA. It seems you are right. It _could_ maybe be implemented in open source, at the very least.
    Well, that’s good, I suppose.
    It still ranks as a “scary technology” though. Kind of cool, but still scary.

    It’s comparable to the way the content industry uses, (or misuses) encryption today. Originally, encryption was developed for the communication of confidential information. The principles were there, even before the invention of computers, actually. That’s a good and, um, sort of “cool” way of using it. Then the content industry began embracing it as a measure of preventing illegal copying, which is where it all went wrong. This means you can buy discs with gigabytes of encrypted information, without the seller ever telling you the decryption key. That was a secret only told to people creating DVD-players and closed software-players. Now that’s a scary way of using encryption, in my mind.

    It’s the same way in which I _do_ now see the good ways in which to use TCPA technology. It could surely be immensely useful for exchanging confidential information in an even more secure way than by ordinary encryption. It seems sensible to use the technology for information exchange inside the military and other corporations/organizations, which may be a “cool” and good way of using it, I think.
    I just can’t see why it must become standard on the motherboards for ordinary home users. Its main use on home-machines would be for the industry to dictate which programs they “trust” to play their content. Which is, well, a very effective form of DRM, I suppose. And this is what I see as a “scary” way of using TCPA. I should be able to choose if I want to utilize the level of security TCPA provides without having to take into account possibly denying myself access to entertainment-content from the industry, or being forced to use specific binaries for playing movies and such. Besides, freeing the movie, or the music from this DRM is just an analog copy away, as previously mentioned, so what’s the point, aside from annoying the consumer with yet another level of protection?
    All the newest movies and music will still be available on P2P networks and the likes. It’s inevitable, yes. Even with TCPA. But frankly, I don’t really think it’s hurting the industry as much as it claims.
    (Just to clarify: No, despite this opinion, I don’t do illegal copying. I adhere to the laws of my country, which doesn’t allow copying without permission…). I just can’t bear to see any more futile attempts at stopping it. Every single attempt just seems to inconvenience the honest buyer, while proving no significant hindrance for P2Pers.
    Btw, poptones. Yes, I _am_ running a completely free GNU/Linux system right now. The motherboard is a mere 2-3 years old. You just have to be careful about the hardware you choose. Most motherboards today runs fine with a completely free OS on top. If you can stay away from ATI and nVidia cards, or do without their 3D functions, the rest is really very easy. And the reason I stay away from hardware with only proprietary drivers isn’t just because of “trust”.

    TBM:
    Yes. I’m very much against “DRM systems that can’t be implemented on a free (in the GNU sense) system”. That is, DRM systems where they basically say: “We just have to keep it secret, then we have good rights management.”, which is a fundamentally flawed way to go about DRM, really.
    No, I don’t really think DRM is needed either, because I don’t really think non-commercial piracy is anywhere near as destructive as the industry believes… Even if TCPA is to prevail and be used for DRM on home PCs, piracy is in no way impossible. And DRM only serves to inconvenience the regular consumer/costumer in the end. But if we _must_ have DRM, then go about it in an open way, please. Like SUN is suggesting now. Yep, the news were out just yesterday, and I must admit to being wrong on that point, poptones :)
    They’ve developed an _open source DRM system_… Without TCPA. Presumably implementable on a free GNU/Linux system. I wonder why this hasn’t been done before? Surely, the industry could only embrace such a solution, seeing as they then don’t have to fear the many open source hackers trying to crack it to make it work on a Free system…

  • http://blogs.jigzaw.com Shannon Clark

    If people haven’t read about this yet – take a look at http://www.boingboing.net/2005/08/22/customers_of_new_uk_.html

    Apparently a UK DSL service has struck a deal with Sony to allow FULL, UNRESTRICTED sharing of all Sony owned music (I think just music) by subscribers of this UK DSL service – full as in via P2P services, ripped from CD etc.

    Sony and Independent Labels the DSL provider has entered into agreements with will share a proportional portion of the service’s revenue (they are monitoring known P2P services apparently – the details of that are unclear from the BoingBoing article).

    This announcement, if true and managed in the long term, is a great step forward – it is a very sensible compromise and allows the artists to be compensated, the label to get a rich data stream (apparently rough numbers about which specific songs are traded and how frequently – for the back catalogue in particular this might be very valuable data and for new releases might be helpful in picking the hits), and individual consumers to make a financial decision, support the artists and be legal

    I wonder, however, if this will be extended to non-music content (films and tv shows) and if other labels and other access providers will also adopt this model.

    One item I found interesting is that apparently this specific provider offers a fairly slow version of DSL – I think this idea will really take off when the service offered is highly competitive in terms of access speed and offers this extra perk ( I suspect many people would pay a premium especially when more labels beyond Sony are added – if any take the plunge).

    Shannon

  • http://gnuosphere.blogspot.com Peter Rock

    Rodander:

    But he did make the point of not wanting to use “non-free” software. That obviously means he doesn’t want to pay a market price for what he wants to use — he wants someone else to do the work and give it to him (again, I will assume that he wouldn’t take it). So the debate comes down to price — anything above free (with total rights to do whatever with it, as you point out) is not acceptable to some.

    ?!

    Do you have any idea why Richard Stallman started the GNU Project? This has nothing to do with price. I have paid for some free software and will continue to do so in the future. I don’t understand why the free software people keep getting characterized as couch-potato losers who just want a free ride. How strange.

  • Palle Raabjerg

    Shannon Clark:
    Hold on. It isn’t april the first? No…
    Hrmm. It’ll still need some confirmation. If true, then yes, that’s what I’d call good news :)
    Perhaps even great news.

  • three blind mice

    What I want: Freedom, and an environment where piracy is not an issue because everyone already has access to digital culture created by artists who are compensated fairly.

    well Peter Rock this is where we part company. your vision of freedom excludes private property. in the modern western constitutional concept of freedom, from the magna carta onwards, the right to private property is the cornerstone of freedom.

    Are you suggesting that pursuing freedom causes people to break copyright law?

    no, but arguing that locks are immoral makes it easier for dishonest people to open doors that we want to remain closed. it is a pity that we have to remember PIN codes, it is a pity that we have to carry keys and put lock our doors, but to not do this is to live in a fantasy world.

    Btw, poptones. Yes, I _am_ running a completely free GNU/Linux system right now.

    Palle Raabjerg, no, you are not. if you do not also own the complier and, more importantly, the microprocessor and all the associated hardware your “freedom” isn’t what you think it is. connect your PC to an ISP, and your “freedom” gets even smaller, use TCP/IP to connect to another server, and what remains in your visible control is very limited indeed.

    why should you trust the whole iceberg, just because you can see the part above water?

    in this light, TCPA is a lot more transparent than the insistence that top layer software layer be “free.”

  • poptones

    The point I have been making, TBM, is that this is not the choice we must make, to have proprietary DRM or to have no DRM. But to date no one in the “free” community has been willing to address this segment of the market with a free and open alternative..

    This is the problem. and it is not the fault of Hollywood or Microsoft or Apple that this has not been done. The free software community has no one to blame for this but itself.

    It seems some still don’t get that DRM and trusted infrastructure is not just about music and movies and books

    DRM is needed within the free community more than within the corporate. The corporate community already has its “trusted” infrastructure and its licensing deals and its lawyers and lobbyists to protect its interests. It’s ironic someone mentioned “Big brother” when talking about DRM. Big brother controls access to the “trusted infrastructure;” big brother sets the rules of the game and tracks your every transaction through that trusted infrastructure and denies you access to it when some vocal minority sways those “market forces” that own big brother.

    But the point of any corporation is to make profit. And market forces will push the supplies to supply the products and rights that consumers will want and use.

    If you do not have credit then you do not have access to this system. If you do wish to offer a service that defies some world government agenda, then you are excluded from this system. If you merely do not want to play the game by the rules of those who own and control the only trusted infrastructure, then you are excluded.

    No, this is not the corporate world of the John D Rockerfellers. John D Rockerfeller was one of those fellows who felt the wealthy had a responsibility to the world that made them. The John D Rockerfellers are few and far between. This is the corporate world of Enron and Tyco and the Ken Lays. A world where even “the good guys” conspire with governments to censor and oppress their citizens. Because, as you correctly pointed out, they must do what they must in order to protect their shareholders and to sustain profitability. It is a small world now, and when Italy or France or China or the US says “you must not do this” they have no choice but to comply.

    DRM and a trusted platform will empower people to work for themselves within this shared infrastructure. It will allow for individuals pooling their resources into organizations that may exist only within this digital realm and to offer services that compete directly with those now allowed only to the Big Brother entities.

    The promise of the online realm presently isn’t being fulfilled – and it can never be to many because they don’t have access to the assets or the records the corporations demand before they will allow us to play in the online game which they essentially own.

    Check this out. It’s a good start, but may not mean much if we are locked out of the hardware platform upon which it will depend.

  • Peter Mogensen

    Yes, It’s correct when poptones says that TCPA can be implemented in Open Source. And he is also correct that it could have many useful applications.
    But it doesn’t change that it could also support an infrastructure demanding “certified” software which could give problems for many important ways of using open source software and the open source development model.

    @poptones
    Could you please explain how you define “freedom”, when you claim that Palles system is not completely free. Something tells me you are putting a lot more in your “freedom” requirement than FSF does.

  • Palle Raabjerg

    Peter M.:
    Unless we have to go into the BIOS and certain firmwares, which there might be an argument for, I’m quite confident this is a free system I’m running, yes :) Otherwise, the rest is hardware, which isn’t really essential as I can’t make changes to that anyway.

    Trustyness is not the main reason I want to run a free system. If it was only that, I wouldn’t have any real issues with using nVidia and ATI drivers, since I certainly do trust them not to do anything malicious on purpose. The main reason is that there is no practical or legal barriers for me changing or fixing anything I want on the system. Which is indeed something TCPA could make problematic in various ways.

  • poptones

    “Palle’s system?” I have not seen Palle describe a system. if you mean the open source DRM announcement from SUN – he one I linked to in my last post – then you are talking about something that is, at this point, vapor. It is a “plan” for some DRM solution that is built upon Java and oriented, at least initially, at the mobile phone market.

    And that is because robust DRM depends entirely upon a trusted or locked system, and mobile phones are presently one of the few platforms to provide this. In order for such a system to work on the PC it must be built upon trusted hardware – and you will note that SUN, despite a presence in the TCG, makes no mention of this on their “open trust” website. Nor is it likely SUN’s invitation of “openness” will ever be extended to the linux community regarding TCPA because SUN has its own operating system (which is open source but not at all Free in the libre sense of the word) which they want to spread – and making Solaris the only TCPA enabled “free” operating system available is in their best corporate interest.

    I have no idea how the EFF defines freedom but I know how everyone from Moses to Jefferson defined it. They defined it by man’s right to own a place in this world – because ownership is important to a sense of self. Because if you do not have ownership of your being you are forever at the mercy of those who do. And in the digital realm we have no ownership of our being because so much of our “being” is contained on the only trusted infrastructure that is “ours” only through the grace of our corporate masters.

    Having a trusted platform enables us to own our means of commerce – and ourselves. DRM means having the choice to make free what we wish to be free and to keep for ourselves what is rightfully ours.

    You continually talk of concerns about being tracked through DRM yet every website you visit and every purchase you make online is tracked and recorded. Without a distributed mechanism of trust – a peer to peer system of exchange – this will forever remain true.

    TCPA means distributed trust. it means I control the tools of commerce and you control the tools of commerce and a Billion others across the world control the tools of commerce. Every one of us controls the part that most directly affects us – our own pocketbook. It doesn’t matter if you are in Afghanistan or Zimbabwe, if you have access to a trusted computing platform, a memoy dongle, and something to offer the world you can participate in the world market. No social security number, no credit checks and bowing down to the will of a hundred oppressive governments, no begging permission from those who run the offfline world. Whether you are a Mexican migrant worker living in New York or a Cuban refugee in Miami, you can send tokens of commerce home to your family; no handling charges, no governments telling you that you cannot, no taxman standing in the doorstep of your family’s home when the money arrives.

    Without a trusted computing platform we, the people do not have any control over the means of commerce. All the talk in the world about a “global community of enlightened and empowered citizens” is nothing but lip service to liberty if we do not have the freedom to transact business without first begging someone’s permission..

  • poptones

    Yes, It’s correct when poptones says that TCPA can be implemented in Open Source. And he is also correct that it could have many useful applications.
    But it doesn’t change that it could also support an infrastructure demanding “certified” software which could give problems for many important ways of using open source software and the open source development model.

    There is always the opportunity to become untrustworthy. Would you put your money in a bank that kept its deposits hanging in the alley on a clothes line?

    Yes, this system can be abused. it can lock us out of the future completely and make linux a quaint operating system relegated only to hobbyists and paranoid “blanks” who live in alleys and subway tunnels. And the one sure way to make exactly that happen is to jam our fingers in our ears and scream about how unfair the system is because we are not allowed to participate.

  • http://gnuosphere.blogspot.com Peter Rock

    “well Peter Rock this is where we part company. your vision of freedom excludes private property. in the modern western constitutional concept of freedom, from the magna carta onwards, the right to private property is the cornerstone of freedom.”

    There it is! The “bias“!

    3 Blind Mice, you would be a fool to deny that we are conversing over copyright. Yet, you speak of “the magna carta?!

    Tell us mice…why is constitutional copyright in the united states of america limited by time? Please…I’d like to know why the government can’t come and take away your property after two decades yet they can take away your patent. Please, enlighten us…and then part company if you wish.

    Can you answer us clearly, or are you too caught up in your beliefs?

  • http://www.commonsmusic.com Commons Music

    TBM, you said (to someone else):

    …how do you justify that the benefit to you to use �free� software is worth more than the greater loss to society caused by widespread piracy?

    Well, philosophical arguments aside, I’d like some evidence that DRM reduces piracy. If you present it (and it’s accurate), then we’ll talk.

    Note that I will not accept evidence from the NPD Group, as they seem to be an overnight organization that has been criticized for inaccurate information, spinning errors into truth, and outright fabrication of facts.

  • three blind mice

    Commons Music, Peter Rock, we don’t want to appear to be ignoring your questions, but it is time to let this thread die.

    it has derailed so many times and crossed over itself, it looks like the path we blind mice take home after a night of hard drinking and substance abuse.

    this party has broken up into small groups, some of which moved into the bathroom quite a while ago, and it’s time for everyone to go home and sleep it off.

    let’s say we pursue these issues in the future in a new thread that is more germane to the topics you both raise.

    *mice exit thread muttering to themselves…. must stay on topic, must stay on topic, must stay on topic*

  • http://gnuosphere.blogspot.com Peter Rock

    3 Blind(ed by Physical Property) Mice:

    Commons Music, Peter Rock, we don’t want to appear to be ignoring your questions, but it is time to let this thread die.

    Mice, I’m not particulary worried if we 3 are the only ones left reading this thread or if a million people are. The fact that you want to run away after CM challenges your implied belief that DRM reduces piracy and after I call you on your blatent misuse/abuse of the Magna Carta in an attempt to paint me as “anti-property” is telling.

    You do not want to end this thread because you are tired. You need not go and “sleep it off”. The simple facts are -

    1) your tails have been cut off by the carving knife because

    2) you have no legitimate response to CMs DRM/piracy question or my exposition of your bias between real-world objects and ideas. The “magna carta”? Give me a break.

    But at least keep thinking on this question…it will help break down your conditioning —

    Why is constitutional copyright and patent law bounded by a limited time?

    See you in future threads…

  • Graeme

    Post *content* aside, am I the only one who is horrified at her lack of spelling, proofreading, or grammar? “in fact that is what is always so fascinating.” is not a sentence. “I just haven’t seen an environ7ement that suffers from an excess of “ownership.””? Perhaps she should look up “slavery” after she looks up how to use her spell-checker.

  • three blind mice

    never accuse the mice of running away from a fight Peter Rock. we’ll join you at the bar for one last drink, or in the bathroom for one last joint, before we call it a night.

    as regards Commons Music’s question I’d show some evidence that DRM reduces piracy. If you present it (and it’s accurate), then we’ll talk.

    well it’s a vapid question, but here goes: there hasn’t been much DRM so the empirical evidence is frankly pretty thin. how could it be otherwise? there has, on the other hand, been terabytes of pirated digital content transmitted over the net. so at least piracy exists. we know that. and from that we can conclude that the tendency towards piracy among the general population is large.

    before DVD-jon cracked the CSS encryption it was impossible to rip DVDs and separate the content from the media. after DeCSS, it wasn’t. if you want to believe that people did not take advantage of DeCSS to do more than watch their paid-for DVDs on their linux box, you are more than welcome to engage in fantasy.

    as for you Peter Rock, poptones cited frikkin Moses:

    I have no idea how the EFF defines freedom but I know how everyone from Moses to Jefferson defined it. They defined it by man’s right to own a place in this world – because ownership is important to a sense of self.

    the magna carta came thousands of years later, but it was all about property rights. six centuries before the enlightenment invented the concept of libre, sir, property rights was what libre was all about. it still is. unless the wikipedia entry has re-written this bit of history….

    and to your question, Why is constitutional copyright and patent law bounded by a limited time?

    civil liberties. at some point both inventions and works of art become so ubiquitous that the enforcement thereof requires a very heavy hand of government. but for a limited time, the hand is light and the tradeoff is necessary, acceptable, and beneficial.

    it all falls into to commons at some point – as it should. the question is when. the commons-ists want it all and they want it now and that, dear friend, totally destroys the concept of property and undermines the very essence of libre.

  • http://gnuosphere.blogspot.com Peter Rock

    Graeme:

    Perhaps she should look up “slavery” after she looks up how to use her spell-checker.

    Yeah, that was the bad half of the major “rights” proclaimed by the Magna Carta. Private property however, is something that the Mice and I both share a vision for. What information has to do with a discretely measureable chunk of land (which is what the magna carta primarily addresses along with slavery) is beyond me.

    To fail to acknowledge that copyright, in its current form, would be better referred to as – copyprivilege, is unfortunate.

    Do we