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[IP] more on more on "DRM"



Begin forwarded message:

From: Simon Higgs <simon@xxxxxxxxx>
Date: June 18, 2005 2:34:56 AM EDT
To: dave@xxxxxxxxxx
Cc: froomkin@xxxxxxxxxxxxx
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@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
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Best Regards,

Simon Higgs



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Best Regards,

Simon Higgs




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