<<< Date Index >>>     <<< Thread Index >>>

[IP] more on "DRM"



Begin forwarded message:
From: "Michael Froomkin - U.Miami School of Law" <froomkin@xxxxxxxxxxxxx> 
Date: June 16, 2005 9:40:31 AM EDT
To: David Farber <dave@xxxxxxxxxx>
Cc: Ip ip <ip@xxxxxxxxxxxxxx>
Subject: Re: [IP] more on "DRM"
Reply-To: froomkin@xxxxxx


[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@xxxxxx
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@xxxxxxxxx>
Date: June 15, 2005 4:17:47 PM EDT
To: dave@xxxxxxxxxx
Cc: mradin@xxxxxxxxxxxx
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@xxxxxxxxxx>
Subject: [IP] "DRM"
Date: Wed, 15 Jun 2005 11:00:50 -0400
Begin forwarded message:
From: Margaret Jane Radin <mradin@xxxxxxxxxxxx>
Date: June 15, 2005 7:57:09 AM EDT
To: dave@xxxxxxxxxx
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@xxxxxxxxx
To manage your subscription, go to
 http://v2.listbox.com/member/?listname=ip
Archives at: http://www.interesting-people.org/archives/ interesting-people/ 



Best Regards,

Simon Higgs



-------------------------------------
You are subscribed as froomkin@xxxxxxxxxxxxx
To manage your subscription, go to
http://v2.listbox.com/member/?listname=ip
Archives at: http://www.interesting-people.org/archives/interesting- people/ 




-------------------------------------
You are subscribed as roessler@xxxxxxxxxxxxxxxxxx
To manage your subscription, go to
 http://v2.listbox.com/member/?listname=ip

Archives at: http://www.interesting-people.org/archives/interesting-people/