October 6, 2005 4:00 AM PDT
Perspective: Here's a surefire way to stifle innovation
See all Perspectives
Now that the Grokster decision has been handed down and innovation still appears to be among us, it's important to continue the fight for new ideas. That effort should include preserving, through intellectual-property protection, the innovation of online business models that empower consumers by offering for sale or rental goods with differing uses at varying price points.
Ultimately, if consumers are going to be able to fully benefit from the flexibility and ease of access afforded by the Internet, they must not have their choices curtailed by misguided federal legislation.
A well-meaning U.S. Congressman, Rick Boucher of Virginia, is the author of the legislation in question. He first tried to make circumvention of copy-protection mechanisms legal back in 1998, when Congress was debating the Digital Millennium Copyright Act. His effort to amend the bill failed.
Since then, he has been continuing his crusade through standalone bills; his version in this Congress is HR-1201. Boucher claims that digital rights management (DRM) on DVDs, CDs and other mediums can stifle fair use. The U.S. Copyright Office largely has disagreed in DMCA review proceedings, but Boucher nonetheless persists.
What has changed since 1998, however, is distribution. It is uneconomical for a content producer to offer multiple versions of physical media with a variety of technological protection measures, or TPMs. If the producer did manage such a range, there could easily be compatibility issues with playback devices. Thus, few TPM options exist in the world of physical media, and Boucher can always come up with a scenario he believes involves fair use that is limited by TPM.
But when the content is delivered purely as digital bits, there is no limit to the range of TPM that can be applied. Content producers can also quickly change their options to meet market demand. What is a publisher to do when it finds out that it can't get students to buy e-textbooks when they expire after a mere four months? By changing one line of code, those four months can be expanded to a full year.
Online music subscription services can experiment with the number of music players permitted, the number of computers allowed, whether the songs are "owned" or rented, etc., and can change those settings on the fly if market forces demand it. That's far more difficult with physical media. The TPM being put into upcoming high-definition DVD formats, for example, likely will remain in place for years, if not for the entire duration of the format.
What does this infinite flexibility for digital TPM mean for media distributed online? It means consumers will have more choice. More legal music options are already available online, and at The Progress & Freedom Foundation's recent Aspen Summit, we heard Warner Music Group Chairman and CEO Edgar Bronfman Jr. promise an e-label for up-and-coming artists.
At an event we hosted earlier this year, Motion Picture Association of America President Dan Glickman said his members are hard at work on new online distribution methods for motion pictures. And more anecdotally, the increasing number of e-books available on PDAs attests to the potential of that growing market.
When content producers know that they can experiment with various protection approaches, they're more comfortable entering the online market. Also, investors are more inclined to fund such efforts. Imagine a world of unlimited digital content, packaged with a range of TPM at varying prices. In that world, consumers can purchase exactly the amount of use they need and not pay for more.
But if HR-1201 becomes law, every consumer could legally hack any TPM by claiming fair use, and as fair use isn't codified, there would be as many definitions of it as there are consumers. Consumers would be legally sanctioned to break their contracts with the content provider.
No sane business operator enters a contract in which one party has the right to disregard its terms at will, but that's what HR-1201 permits. That hated TPM would disappear from the market, as there's no reason to employ a lock if everyone has a legal right to the key. But as TPM leaves, so do the digital offerings that come with it.
There's a lot of creative thinking going on today in the world of TPM, as Sun Microsystems' president Jonathan Schwartz just acknowledged at the Aspen Summit. That imaginative thinking, coupled with the creativity involved in producing everything from music to movies, books to video games, podcasts to quilting patterns, combines to form the potential for unlimited consumer choice. As a consumer myself, I'm all for that. So we must continue the mantra a little longer--"Don't stifle innovation!"
Biography
Patrick Ross is a vice president of The Progress & Freedom Foundation in Washington, D.C.
See more CNET content tagged:
Rick Boucher, innovation, content company, Grokster Ltd., DMCA
"No sane business operator enters a contract in which one party has the right to disregard its terms at will ..."
but that's exactly what happens to CONSUMERS. Thanks to the DMCA the concept of Fair Use (you might want to look that up, as you obviously have no concept of what it is) is close to being dead.
I can't wait until something that you want to do is blocked by DRM -- perhaps something that you've written but no longer have access to because someone else owns it.
as you quote "No sane business operator enters a contract in
which one party has the right to disregard its terms at will ..."
but then before that he actually says himself that the content
owners can and are changing the contracts already at will
"Online music subscription services can experiment with the
number of music players permitted, the number of computers
allowed, whether the songs are "owned" or rented, etc., and can
change those settings on the fly if market forces demand it. "
I guess the differentiation is that consumers "change a contract
at will" while companies "experiment"
In addition the claim that all of this "stifles innovation" is never
proven just made.
I don't really expect a lot from these think tank people, but C-
Net could do a better job filtering the content they post on their
site. No problem posting something that is in favor of DRM... but
make it an intelligent post.
"No sane business operator enters a contract in which one party has the right to disregard its terms at will ..."
but that's exactly what happens to CONSUMERS. Thanks to the DMCA the concept of Fair Use (you might want to look that up, as you obviously have no concept of what it is) is close to being dead.
I can't wait until something that you want to do is blocked by DRM -- perhaps something that you've written but no longer have access to because someone else owns it.
as you quote "No sane business operator enters a contract in
which one party has the right to disregard its terms at will ..."
but then before that he actually says himself that the content
owners can and are changing the contracts already at will
"Online music subscription services can experiment with the
number of music players permitted, the number of computers
allowed, whether the songs are "owned" or rented, etc., and can
change those settings on the fly if market forces demand it. "
I guess the differentiation is that consumers "change a contract
at will" while companies "experiment"
In addition the claim that all of this "stifles innovation" is never
proven just made.
I don't really expect a lot from these think tank people, but C-
Net could do a better job filtering the content they post on their
site. No problem posting something that is in favor of DRM... but
make it an intelligent post.
This has nothing to do with digital rights management (DRM). Creating a new acronym (TPM) with a positive linguistic frame ("technology protection management") doesn't change that fact. Mr. Ross is arguing that corportions know what is better for their customers than their customers do. I wonder if he thinks being so transparent about it will work?
This has nothing to do with digital rights management (DRM). Creating a new acronym (TPM) with a positive linguistic frame ("technology protection management") doesn't change that fact. Mr. Ross is arguing that corportions know what is better for their customers than their customers do. I wonder if he thinks being so transparent about it will work?
industry rhetoric, this article slips to a new low.
First and foremost, Ross simply doesn't understand the legal
issues that are at stake. "Fair use isn't codified?" Try 17 USC 107.
It may not be cut-and-dried, but it's in the book.
Second, all of his rhetoric that TPMs are being developed in a
way that will stop harming consumers doesn't answer Boucher's
deeper issues with fair use. Even if we enter TPM utopia, where I
can buy locked-down media in my choice of TPM-laden format,
I'm still denied important rights of free speech. It's still illegal for
me to hack a DVD in order to make a 15 second clip of it for a
media criticism documentary. As a Ph.D. candidate in
communication, I can assure you that this is stifling innovative
forms of doing media studies, and that's just my corner of the
very large TPM-handicapped world.
Third, HR 1201 would neither uniquely lead to nor permit wide
scale, wholesale infringement. The last section insists that fair
use would stand as a defense to the section and that the Sony
standard, "substantial noninfringing uses," should guide which
tools can be marketed. This means it's still illegal for me to hack
rented DVDs to create my own library, to distribute software
serial numbers online, or to sell "black box" devices that are
designed primarily to help me commit infringements.
Additionally, Ross provides no response to the obvious fact that
all of these things are already happening despite the DMCA;
clearly, the law under the status quo isn?t slowing down the
willful infringers.
What does the bill permit? The same things we were allowed to
do in the analog era: home recording of music for personal use
(e.g., mix CDs), fair use quotations of encrypted media, and
reverse engineering out of mere curiosity (subject to EULA).
As a fourth bit of shoddy quasi-journalism, Ross is totally
unresponsive to concerns about fair labeling. In ANARCHIST IN
THE LIBRARY, Siva V tells a terrifying story about a customer who
unknowingly bought a TPM-laden CD. When he found out it
wouldn't play on his home player, he wrote the record company.
Not only did they not fix his problem, they wrote a letter
assuring him that they were hell bent on releasing all CDs in
protected formats and that there's nothing he can do about it.
Does this sound like a fair business practice? HR 1201 requires
full disclosure of TPM restrictions so that customers can make
informed choices.
Fifth, Ross confidently cites the Register of Copyrights, Marybeth
Peters, in her conclusion that there's generally no problem here.
Ross commits a radical misquotation. Peters insists that the
statute is riddled with problems that handicap her ability to
preserve fair use through the exemption proceedings. She
explicitly states that important uses such as library archiving are
left out in the cold. She expresses deep reservations about the
statute's inability to effect the intended dichotomy between
access-controlling and use-controlling TPMs The former is
intended to make sure that people pay for their stuff, and it is
illegal to hack them. The latter is an inconvenience to the paying
customer, but users may hack them without breaking the law.
Unfortunately, a lot of TPMs control access but function
primarily as use controls; the DVD encryption scheme (CSS) is
the paradigm example, but there are many. In the final rulings,
Peters expressed her inability to solve this "dual-purpose"
problem. On these and other issues, Peters explicitly encourages
Congressional reform. Appealing to Peters' statement that
there's no problem here is the work of somebody who either has
not read her entire ruling, is intellectually dishonest, or both.
Read the bill yourself; Google "HR 1201" and you'll see it's a very
valuable piece of legislation.
As for you, Mr. Ross, let me know the next time you're coming
to Philadelphia. We can arrange a debate on Penn's campus.
Look me up at ShoutingLoudly.com.
industry propaganda foisted on us by Mr. Ross.
The only thing I can add is that I hope if Mr. Ross does show up for a debate he bothers to shave. I mean really, check out his headshot:
http://i.i.com.com/cnwk.1d/i/ne/mugs/lg/lg_ross_p.jpg
Does he think he's trying out for a part on a Miami Vice remake or something?
on a DVD, even after the copyright on the
content is expired.
The DMCA makes it illegal to use, distribute, or
posesses the means to do so. Ironically, this
applies to author and copyright holder as much
as it does unaffiliated parties.
If you recall, copyrights were first introduced
to break the control of printer's guilds by
securing rights for authors. Today, the DRM
implementors have taken the guild's place and
the law very clearly gives back to them the
powers that copyright itself was meant to curb.
HR1201 would let your daughter include a video
clip into her school project with impunity, save
for the fact that it would still be a crime to
posess the software that permitted her to do it.
After all, that same software could do something
infringing, could it not?
industry rhetoric, this article slips to a new low.
First and foremost, Ross simply doesn't understand the legal
issues that are at stake. "Fair use isn't codified?" Try 17 USC 107.
It may not be cut-and-dried, but it's in the book.
Second, all of his rhetoric that TPMs are being developed in a
way that will stop harming consumers doesn't answer Boucher's
deeper issues with fair use. Even if we enter TPM utopia, where I
can buy locked-down media in my choice of TPM-laden format,
I'm still denied important rights of free speech. It's still illegal for
me to hack a DVD in order to make a 15 second clip of it for a
media criticism documentary. As a Ph.D. candidate in
communication, I can assure you that this is stifling innovative
forms of doing media studies, and that's just my corner of the
very large TPM-handicapped world.
Third, HR 1201 would neither uniquely lead to nor permit wide
scale, wholesale infringement. The last section insists that fair
use would stand as a defense to the section and that the Sony
standard, "substantial noninfringing uses," should guide which
tools can be marketed. This means it's still illegal for me to hack
rented DVDs to create my own library, to distribute software
serial numbers online, or to sell "black box" devices that are
designed primarily to help me commit infringements.
Additionally, Ross provides no response to the obvious fact that
all of these things are already happening despite the DMCA;
clearly, the law under the status quo isn?t slowing down the
willful infringers.
What does the bill permit? The same things we were allowed to
do in the analog era: home recording of music for personal use
(e.g., mix CDs), fair use quotations of encrypted media, and
reverse engineering out of mere curiosity (subject to EULA).
As a fourth bit of shoddy quasi-journalism, Ross is totally
unresponsive to concerns about fair labeling. In ANARCHIST IN
THE LIBRARY, Siva V tells a terrifying story about a customer who
unknowingly bought a TPM-laden CD. When he found out it
wouldn't play on his home player, he wrote the record company.
Not only did they not fix his problem, they wrote a letter
assuring him that they were hell bent on releasing all CDs in
protected formats and that there's nothing he can do about it.
Does this sound like a fair business practice? HR 1201 requires
full disclosure of TPM restrictions so that customers can make
informed choices.
Fifth, Ross confidently cites the Register of Copyrights, Marybeth
Peters, in her conclusion that there's generally no problem here.
Ross commits a radical misquotation. Peters insists that the
statute is riddled with problems that handicap her ability to
preserve fair use through the exemption proceedings. She
explicitly states that important uses such as library archiving are
left out in the cold. She expresses deep reservations about the
statute's inability to effect the intended dichotomy between
access-controlling and use-controlling TPMs The former is
intended to make sure that people pay for their stuff, and it is
illegal to hack them. The latter is an inconvenience to the paying
customer, but users may hack them without breaking the law.
Unfortunately, a lot of TPMs control access but function
primarily as use controls; the DVD encryption scheme (CSS) is
the paradigm example, but there are many. In the final rulings,
Peters expressed her inability to solve this "dual-purpose"
problem. On these and other issues, Peters explicitly encourages
Congressional reform. Appealing to Peters' statement that
there's no problem here is the work of somebody who either has
not read her entire ruling, is intellectually dishonest, or both.
Read the bill yourself; Google "HR 1201" and you'll see it's a very
valuable piece of legislation.
As for you, Mr. Ross, let me know the next time you're coming
to Philadelphia. We can arrange a debate on Penn's campus.
Look me up at ShoutingLoudly.com.
industry propaganda foisted on us by Mr. Ross.
The only thing I can add is that I hope if Mr. Ross does show up for a debate he bothers to shave. I mean really, check out his headshot:
http://i.i.com.com/cnwk.1d/i/ne/mugs/lg/lg_ross_p.jpg
Does he think he's trying out for a part on a Miami Vice remake or something?
on a DVD, even after the copyright on the
content is expired.
The DMCA makes it illegal to use, distribute, or
posesses the means to do so. Ironically, this
applies to author and copyright holder as much
as it does unaffiliated parties.
If you recall, copyrights were first introduced
to break the control of printer's guilds by
securing rights for authors. Today, the DRM
implementors have taken the guild's place and
the law very clearly gives back to them the
powers that copyright itself was meant to curb.
HR1201 would let your daughter include a video
clip into her school project with impunity, save
for the fact that it would still be a crime to
posess the software that permitted her to do it.
After all, that same software could do something
infringing, could it not?
The first problem is that the contract between content providers and consumers has a name -- it's called copyright. Copyright is supposed to be time-limited. After this time limit has expired, the copyrighted work is supposed to become public domain. Although the content industry seems to keep buying off congress to extend the term of copyright, the fact remains that there is a limit to how long a work can be protected. If it is not legal to break the lock, this content theoretically can be locked up forever with no way to use it once copyright has expired.
Another problem occurs when DRM (or TPM as Mr. Ross calls it) prevents consumers from using purchased content under the so-called "contract" that consumers have with the content provider. The technology is not perfect (and likely never will be) and these issues do occur. For example, suppose someone downloads music purchased through an online music store. Over the course of time, that person upgrades to new computers. Eventually, the content becomes locked away because it is already on more computers than the DRM will allow, even though the consumer only has one computer. Of course, it could be argued that the online music store could give this person access to the content they had previously purchased, but what if it goes out of business? In order to use the content, this person will have to break the DRM. The issue also exists when a consumer buys a copy-protected CD and tries to rip the music to play on a portable player. I don't see the industry offering consumers a choice between a less-expensive copy-protected CD and a more expensive traditional CD with no protections.
My third and final point is more related to the article itself rather than the DMCA. Why are these choices not being offered right now? Currently, the DMCA is the law of the land and the content providers can offer the product and service choices mentioned in the article without fear that a consumer can legally bypass the protections on that content. The only conclusion that I am able to draw from this lack of choice is that there is no intent to ever offer these choices. Among the few choices that are available today, there is not much of a price difference (the compressed and DRM'ed music available online is just as expensive as a CD).
In conclusion, the right to break TPM restores rights that consumers already have and does so without affecting the content industries. Innovation in TPM is unnecessary and that energy and effort could be put to better use making truly innovative products.
The first problem is that the contract between content providers and consumers has a name -- it's called copyright. Copyright is supposed to be time-limited. After this time limit has expired, the copyrighted work is supposed to become public domain. Although the content industry seems to keep buying off congress to extend the term of copyright, the fact remains that there is a limit to how long a work can be protected. If it is not legal to break the lock, this content theoretically can be locked up forever with no way to use it once copyright has expired.
Another problem occurs when DRM (or TPM as Mr. Ross calls it) prevents consumers from using purchased content under the so-called "contract" that consumers have with the content provider. The technology is not perfect (and likely never will be) and these issues do occur. For example, suppose someone downloads music purchased through an online music store. Over the course of time, that person upgrades to new computers. Eventually, the content becomes locked away because it is already on more computers than the DRM will allow, even though the consumer only has one computer. Of course, it could be argued that the online music store could give this person access to the content they had previously purchased, but what if it goes out of business? In order to use the content, this person will have to break the DRM. The issue also exists when a consumer buys a copy-protected CD and tries to rip the music to play on a portable player. I don't see the industry offering consumers a choice between a less-expensive copy-protected CD and a more expensive traditional CD with no protections.
My third and final point is more related to the article itself rather than the DMCA. Why are these choices not being offered right now? Currently, the DMCA is the law of the land and the content providers can offer the product and service choices mentioned in the article without fear that a consumer can legally bypass the protections on that content. The only conclusion that I am able to draw from this lack of choice is that there is no intent to ever offer these choices. Among the few choices that are available today, there is not much of a price difference (the compressed and DRM'ed music available online is just as expensive as a CD).
In conclusion, the right to break TPM restores rights that consumers already have and does so without affecting the content industries. Innovation in TPM is unnecessary and that energy and effort could be put to better use making truly innovative products.
Feel free to look at:
http://www.pff.org/about/supporters.html
to see who provided the funding for this piece of intelectual flubber.
Feel free to look at:
http://www.pff.org/about/supporters.html
to see who provided the funding for this piece of intelectual flubber.
consumer pay multiple times for the same content on different
devices. Don't allow the consumer to control what s/he does with
purchased content on his/her own personal AV equipment.
Freedom? Progress? No, your organization should be called the
Fleece 'em and Pickpocket Organization.
consumer pay multiple times for the same content on different
devices. Don't allow the consumer to control what s/he does with
purchased content on his/her own personal AV equipment.
Freedom? Progress? No, your organization should be called the
Fleece 'em and Pickpocket Organization.
Anything is forbidden unless specifically defined by law as permitted? That's totalitarism. It's the opposite of freedom, Where everything is allowed unless specifically forbidden by law. And the difference is that undet totalirtarian laws citizens are afraid of doing anything except for a very short list of things they no are permitted.
Copyright laws were meant to give very particular and limited protection to allow a certain kind of economical gain. They should not be transformed into laws that allow only very particular and limited uses.
totalitarinism.
Anything is forbidden unless specifically defined by law as permitted? That's totalitarism. It's the opposite of freedom, Where everything is allowed unless specifically forbidden by law. And the difference is that undet totalirtarian laws citizens are afraid of doing anything except for a very short list of things they no are permitted.
Copyright laws were meant to give very particular and limited protection to allow a certain kind of economical gain. They should not be transformed into laws that allow only very particular and limited uses.
totalitarinism.
1. because i want to play a product i bought on a different device that doesn't support the drm (think itunes music on an iriver player).
2. because i want to use the drm'd product in another creation of my own (say, a song that i'd like to embed into a slideshow of a recent vacation to share with friends).
3. because copyright has expired on the item and i want to take full advantage of its public domain status.
4. because the product is no longer available in a format that current technology allows to play, but i still own a copy of the original product and want to migrate to current tech (think betamax movies to dvd).
the bottom line is that "fair use" isn't protected by law. however, it should be because we're seeing that the ip property owners think that they have the right to charge as much as they can (think recording company pricing-rigging), that the buyer has no fair use rights beyond what the ip owner thinks he should have, and that the ip owner's right to charge for play continues as long as anyone is willing to pay (to heck with copyright expiration!).
mark d.
5. because i want to transfer from the media i bought to an aggragated technology. for example, i think within a couple years we'll be able to rip all our dvd's to a computer with a huge hard drive so we don't have to fish out the disks whenever we want to watch a movie/tv show. this would be fantastic, but won't happen if content owners are allowed to implement their vision of drm.
6. because i want to protect content i've paid for from disaster (such as the f-5 tornado that blew about 1/2 mile south of my house here in oklahoma a couple years back). off-site storage of backups is very necessary.
mark d.
Wrong. See 17 USC 107:
http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000107----000-.html
Otherwise, your post is on the money.
(sorry, previously posted in the wrong thread...)
1. because i want to play a product i bought on a different device that doesn't support the drm (think itunes music on an iriver player).
2. because i want to use the drm'd product in another creation of my own (say, a song that i'd like to embed into a slideshow of a recent vacation to share with friends).
3. because copyright has expired on the item and i want to take full advantage of its public domain status.
4. because the product is no longer available in a format that current technology allows to play, but i still own a copy of the original product and want to migrate to current tech (think betamax movies to dvd).
the bottom line is that "fair use" isn't protected by law. however, it should be because we're seeing that the ip property owners think that they have the right to charge as much as they can (think recording company pricing-rigging), that the buyer has no fair use rights beyond what the ip owner thinks he should have, and that the ip owner's right to charge for play continues as long as anyone is willing to pay (to heck with copyright expiration!).
mark d.
5. because i want to transfer from the media i bought to an aggragated technology. for example, i think within a couple years we'll be able to rip all our dvd's to a computer with a huge hard drive so we don't have to fish out the disks whenever we want to watch a movie/tv show. this would be fantastic, but won't happen if content owners are allowed to implement their vision of drm.
6. because i want to protect content i've paid for from disaster (such as the f-5 tornado that blew about 1/2 mile south of my house here in oklahoma a couple years back). off-site storage of backups is very necessary.
mark d.
Wrong. See 17 USC 107:
http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000107----000-.html
Otherwise, your post is on the money.
(sorry, previously posted in the wrong thread...)
Wrong. See 17 USC 107:
http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000107----000-.html
Otherwise, your post is on the money.
- Fair use isn't protected by law, eh?
- by aabcdefghij987654321 October 7, 2005 9:03 AM PDT
- > the bottom line is that "fair use" isn't protected by law.
- Like this Reply to this comment
-
Showing 1 of 4 pages (124 Comments)Wrong. See 17 USC 107:
http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000107----000-.html
Otherwise, your post is on the money.