IP: Thieves R Us

[David Farber <dave () farber net>]

> X-Sender: >X-Sender: mnemonic@166.84.0.212
> Date: Fri, 11 May 2001 14:36:51 -0400
> To: dgillmor () sjmercury com
> From: Mike Godwin <mnemonic () well com>
>
>
> Thieves R Us
> Computer makers are building equipment on the assumption that we are all 
> copyright outlaws
> Mike Godwin
> The American Lawyer
>
> April 18, 2001
>
>
> Every year or two I upgrade to a newer, faster Mac laptop, and this means 
> I go through a now-familiar ritual of hooking up the new machine to the 
> old one through a cable or local area network and copying everything -- 
> software, data (including my MP3 music collection), and settings -- to the 
> new machine. So you can imagine my surprise and horror when I heard 
> reports recently that a new standard for consumer hard drives would make 
> this kind of copying difficult or maybe even impossible.
>
> The reports may have been at least partially wrong, as it turns out. But I 
> think they raise important issues, and ones we ought to be thinking about now.
>
> The notion that hard drives might be hard-wired to prevent copying first 
> collided with my consciousness in January. That's when I heard about a 
> technology known as CPRM, which stands for Content Protection for 
> Recordable Media. It's being developed by an industry group known as The 
> 4C Entity, with the backing of IBM, Toshiba, and Matsushita.
>
> CPRM, it turns out, was the basis of a flood of criticism against The 4C 
> Entity after a single news story appeared in December in a British online 
> computer journal called The Register. Titled "Stealth Plan Puts Copy 
> Protection Into Every Hard Drive," the article began with an arresting 
> lead: "Hastening a rapid demise for the free copying of digital media, the 
> next generation of hard disks is likely to come with copyright protection 
> countermeasures built in." Okay, that got my attention.
>
> The article went on to say that standard-setting bodies were being asked 
> to adopt CPRM for hard disks. Each disk would have a unique identifier 
> that would help prevent unauthorized copies. The article suggested that 
> this padlock could be built into drives as early as this summer.
>
> The reaction was quick and harsh. By the next day, computer activists, 
> including millionaire software entrepreneur John Gilmore, had circulated 
> the story to mailing lists and other online forums. Gilmore called CPRM 
> "the latest tragedy of copyright mania in the computer industry." He 
> warned that under the standard, users "wouldn't be able to copy data from 
> [their] own hard drive to another drive, or back it up, without permission 
> from some third party."
>
> Industry spokesmen were quick to respond that the protesters misunderstand 
> the technology and that their concerns are overblown. The 4C Entity said 
> that CPRM isn't even designed or licensed for "generic hard disks." It is 
> instead meant for use with other digital media, such as MP3 players and 
> writeable DVDs. The group also says the technology will be optional for 
> computer manufacturers. The standard would simply specify a common digital 
> signal facilitating CPRM technology, but it would not mandate that the 
> signal be present and turned on in a device.
> These qualifications have not mollified Gilmore and other critics, who 
> raise the prospect that technologies like CPRM will push the digital 
> electronics industry into producing only equipment and tools with little 
> or no capability for unlicensed copying.
>
> Now, at this point you might say, "So what? What's wrong with designing 
> hardware in a way that prevents you from breaking the law?"
>
> I think the best answer to this is: Nothing, so long as it doesn't block 
> you from lawful stuff you need to do. Consider: It's certainly possible 
> today to build a car that will never go over the legal speed limit. 
> Perhaps speed-related injuries and fatalities are enough of a reason for 
> the auto industry to produce low-speed cars. But then it would be 
> impossible for drivers to do things they legally have a right to do, and 
> often need to do, such as accelerating safely onto a freeway or 
> accelerating to avoid a road hazard. And a car that can do those lawful 
> things can also break the speed limit. Yet we don't assume that the owner 
> of such a car is a likely speeder.
>
> Put more broadly: Technologies that empower people don't discriminate 
> between good uses and bad. So if we build constraints into our computer 
> systems that prevent infringement, we're also making it impossible for 
> users to engage in all sorts of lawful copying. Except for the most ardent 
> IP hard-liners, most people accept that it is a fair use to make private, 
> personal copies of music and movies. But the proposed standard could 
> prevent that sort of activity.
>
> It's worth comparing these digital rights management technologies to the 
> copy protection schemes that were the rage back in the 1970s and early 
> 1980s -- the first decade and a half of the microcomputer revolution. Back 
> then, plenty of commercial software -- not just games, but also 
> productivity software like word processors and spreadsheets -- was coded 
> to prevent copying.
> Routine tasks like backing up a hard drive and migrating to upgraded 
> systems were an incredible chore. With backups in particular, the software 
> discouraged activities that normal, prudent computer users ought to be 
> doing. As you may remember (and certainly can imagine), this caused a lot 
> of users to gripe.
> Some developers responded by creating programs that circumvented the copy 
> protection. In the long term, however, most software vendors moved away 
> from copy protection altogether; they began to rely on copyright 
> enforcement and the customers' needs for support and upgrades to protect 
> their interests. You generally need to own licensed copies of software in 
> order to get support when you have problems.
>
> The vendors also began lowering the price of software so that it seemed 
> both reasonable and equitable to pay for it rather than copy it. The 
> primary reason that software vendors moved away from copy protection 
> schemes is that they were confronted with competitors that offered similar 
> products without copy protection and with lower prices. In other words, 
> market forces (Microsoft was not yet considered a monopoly) pushed 
> software companies into more rational setups and better relationships with 
> their customers.
> But if copy protection is built into standard computer storage devices, 
> whether hard drives or anything else, what competitors will I be able to 
> turn to? Even my Macintosh PowerBook, which you might think is free from 
> standards imposed in the Wintel world, relies on an IBM standard-issue 
> hard disk.
>
> There's another complication. The Digital Millennium Copyright Act 
> expressly outlaws the dissemination of tools that can be used to 
> circumvent technologies that control access to, or copying of, copyrighted 
> works. I can't even circumvent those technologies myself. Courts have said 
> that it's illegal even when the underlying purpose of the copying (fair 
> use for a classroom presentation or permitted by license) is lawful. Even 
> if the license of my word processor allows me to make archival copies of 
> the software, it's still illegal for me to use circumvention tools to do so.
>
> This combination of law and hardware means that there's a real possibility 
> that someday soon I won't be able to choose between computer products that 
> employ such schemes and those that don't. If that day comes, I don't know 
> how the market will respond, but I know how I will. To the extent 
> possible, I'll stop buying new computer equipment altogether. I'm guessing 
> at least some other computer buyers will make that decision, too.
>
> This will mean I won't have the fastest and best computer equipment 
> anymore, but I'm betting I can stay afloat by haunting used-computer 
> stores for a long time to come. And I'll have the pleasure of knowing that 
> the computer equipment, MP3 device, or CD burner, etc., that I'm buying 
> doesn't have built into it the assumption that I'm a copyright infringer.
>
> Mike Godwin is chief correspondent of IP Worldwide. His e-mail address is 
> > mnemonic () well com.



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