more on more on "DRM"

[David Farber <dave () farber net>]

Begin forwarded message:

From: Simon Higgs <simon () higgs com>
Date: June 18, 2005 2:34:56 AM EDT
To: dave () farber net
Cc: froomkin () law miami edu
Subject: Re: [IP] more on "DRM"


Michael,

Thanks, I needed my butt kicked today. On to round two... ;-)

First thought - Section 106 of the 1976 Copyright Act generally gives  
the owner of copyright certain exclusive rights and the ability to  
authorize others to do certain things with the work in question. A  
right exists, even if it *IS NOT* the same right that the DRM  
enforces (the contestable part).

Second thought - Statutory or Constitutional? Malleable or pliable?  
What copyright law says is that it is illegal for anyone to violate  
any of the rights provided by the copyright law to the owner of  
copyright. The consumer generally doesn't care one bit what vehicle  
compensates the rights holder. The consumer has one aim - to enjoy  
the copyrighted work, whether on a DVD, a 78rpm gramophone or live in  
concert. What the consumer doesn't want is to feel they are being  
screwed over^H^H^H^H^H^H^H^H exploited in the process. Consumers  
don't want DRM. Rights holders do.

Third thought - Implementation is a bitch. Sections 107 through 121  
of the 1976 Copyright Act establish limitations on these rights. So  
far, 100% of all DRM schemes are flawed from the start by a  
successive string of faulty logic in their architecture, planning,  
design and implementation. Consequently, all DRM schemes fail to  
recognize these rights limitations (especially "fair use" & "library  
use"). Just as the right to "lock" a work exists (within the  
appropriate parameters), so does the right to "unlock" a work under  
Sections 107-121.

Fourth thought - Think of it in terms of lines of code. Simple  
programs are easy to write, but writing the error handling routines  
is usually a nightmare. Hypothetically, it's only 20 lines to write a  
Technological Protection Measure within a DRM scheme (i.e. to  
implement Section 106). But, by comparison, it's something like 10  
million lines of code to write the Technological Protection Measure's  
error handling routines (in ordedr to implement Sections 107 through  
121) in that DRM. And this is exactly today's nightmare. TPM/DRM has  
no error-handling routines whatsoever. What is missing are statutes  
to protect Sections 107 through 121 from overzealous DRM implementation.

Fifth thought - Higgs' Third Law Of Convergence - All copyrighted  
works ultimately become public domain works. When the copyrights  
expire, Digital Rights Management (DRM) systems must be made to  
release copyrighted works back into the public domain. By building  
error handle routines into the Technological Protection Measures  
within DRM, copyrighted works can be released at the appropriate time  
and place to the end user.

Best Regards,

Simon



> Begin forwarded message:
>
> From: "Michael Froomkin - U.Miami School of Law"
> <froomkin () law miami edu>
> Date: June 16, 2005 9:40:31 AM EDT
> To: David Farber <dave () farber net>
> Cc: Ip ip <ip () v2 listbox com>
> Subject: Re: [IP] more on "DRM"
> Reply-To: froomkin () law tm
>
>
> [for IP]
>
> In this debate between my friend Simon Higgs and Prof. Peggy Radin,
> one of the US's leading property and cyberlaw scholars, I'm afraid
> Simon has got it all wrong.
>
> The passage he quotes actually makes Peggy's point.  The rights that
> copyright holders get are *statutory* rights, not constitutional
> ones; the Constitution merely empowers Congress to define what rights
> are appropriate, and it's done so in a way that creates a set of
> rights smaller than the set of powers that current technologies seek
> to claim for the sellers.
>
> One of the problems with D-"R"-M is that the "rights" it seeks to
> "protect" usually go well beyond what Congress has legislated -- to a
> point where they are not rights at all, but just grabby.
>
> Two examples will make this clear. (1) The Supreme Court has said
> that we have a right to "time shift" a broadcast -- record it now,
> play it later. Some DRM systems try to make this impossible.  Calling
> that "rights" protection is misleading, since what's being stopped
> isn't part of the right.  (2) The copyright statute gives us all a
> right of fair use. D-"R"-M that makes any copying impossible isn't
> illegal -- but it's "protecting" the content in a way that materially
> exceeds the scope of the right granted by copyright law.
>
> If the average person "knows" something different -- for example
> "knows" that Copyright comes straight from the Constitution without
> the mediating institution of Congress whether acting alone or
> implementing treaties -- then, once again, the average person "knows"
> something that ain't so.
>
>
> --
> http://www.icannwatch.org Personal Blog: http://www.discourse.net
> A. Michael Froomkin   |    Professor of Law    |   froomkin () law tm
> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> +1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
>                          -->It's hot here.<--
>
>
> On Thu, 16 Jun 2005, David Farber wrote:
>
>
>
>
> > Begin forwarded message:
> >
> > From: Simon Higgs <simon () higgs com>
> > Date: June 15, 2005 4:17:47 PM EDT
> > To: dave () farber net
> > Cc: mradin () stanford edu
> > Subject: Fwd: [IP] "DRM"
> >
> >
> > Peggy,
> >
> > Sorry to burst a bubble, but the word "Right" has a specific
> > meaning. There would be no Creative Commons without the word
> > "Right" being etched in this old piece of parchment:
> >
> > THE UNITED STATES CONSTITUTION
> > Article 1.
> > Section. 8.
> > Clause 8: To promote the Progress of Science and useful Arts, by
> > securing for limited Times to Authors and Inventors the exclusive
> > Right to their respective Writings and Discoveries;
> > http://www.house.gov/Constitution/Constitution.html
> >
> > On the other hand, Technological Protection Measures are what
> > exactly? Firewalls? Fuses? Overload shutdown circuits? Electronic
> > prophylactics? Helicopters? Guns? TPM has almost zero meaning
> > outside the narrow world of WIPO for the average person. But even
> > the average person *KNOWS* there are Constitutionally protected
> > Rights and they understand the concept of managing those rights
> > even if they spend all their time trying to circumvent them.
> >
> > Best Regards,
> >
> > Simon Higgs
> >
> >
> >
> >
> >
> >
> > > From: David Farber <dave () farber net>
> > > Subject: [IP] "DRM"
> > > Date: Wed, 15 Jun 2005 11:00:50 -0400
> > > Begin forwarded message:
> > > From: Margaret Jane Radin <mradin () stanford edu>
> > > Date: June 15, 2005 7:57:09 AM EDT
> > > To: dave () farber net
> > > Subject: "DRM"
> > > I wish people would drop the term "DRM."  It was coined by those who
> > > wish to claim as "rights" some things which are not actually their
> > > rights, or are at best contested.  In other words, the "R" in the
> > > term "DRM" begs an important legal question.  I wish people would
> > > instead use the term "TPM" (Technological Protection Measures)
> > > because at least it is neutral on whether or not those who deploy
> > > them have a "right" to do what they're doing in locking up
> > > information.  And TPM happens to be the term used in the WIPO
> > > treaties, too.
> > > BTW, I don't like to read on the list advertisements for people's
> > > forthcoming articles.  To me that is spam.  There are plenty of
> > > sources that inform us what is in the literature.
> > > Peggy Radin
> > > -------------------------------------
> > > You are subscribed as simon () higgs com
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> > > interesting-people/
> >
> > Best Regards,
> >
> > Simon Higgs
> >
> >
> >
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Best Regards,

Simon Higgs




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