From: Hal Finney (hal@finney.org)
Date: Thu Apr 10 2003 - 12:32:08 MDT
Rafal writes:
> It would be very important in this case to maintain the "fair use"
> provisions of current law and to extend them to P2P networks. They would
> act as a check on the power of the database owner - if he decides to
> increase prices too high, P2P networks could undercut him, but as long
> as he remains price/hassle competitive (=the total burden of price +
> inconvenience for his product is lower than for the P2P access), he
> would stay in business. This would be a win to all sides, with built-in
> non-governmental means of staying balanced. The copyright law would only
> proscribe *commercial* abuse of protected data, giving enough of a
> stimulus to produce it, but without the unrestricted monopoly that would
> exist without P2P networks.
I have a different idea, but it is more radical than this and in practice
has no chance of success.
Lee Crocker makes a good point that copyright laws, as well as the even
more invasive TCPA, undercut the morality of even voluntary digital
rights management (DRM) schemes. What we are likely to end up with is
the worst of both worlds - DRM that doesn't necessarily protect fair use,
and which never expires, backed up by copyright and TCPA that use laws
to prevent people from breaking even technologically weak DRM.
One approach is to try to do as Rafal suggests, which is to try to bring
the balanced approach in the current copyright law over to the DRM world.
Two problems I see with this: first, politically the stakes are so high
that it is going to be difficult to come up with an acceptable compromise.
We see this already in the competing bills in the U.S. Congress, some to
tighten TCPA and some to loosen it. What you end up with is stalemate,
more often than not.
And second, my philosophy is that ultimately these issues should be
decided by physics and not law. Either the universe is such that secrets
can be protected, or it is not. I.e. either unbreakable cryptography
exists or it doesn't; tamper-proof containers exist or not; people
can protect their privacy or they can't; etc. These kinds of issues
will ultimately determine what is technologically possible as far as
information management. I think we would do best to try to answer such
questions and make our laws be in accordance with them. Otherwise there
will be constant cheating. So I would prefer a relatively unregulated,
laissez-faire approach and let people on all sides throw their best
technical efforts at the question.
This is why I have worked on projects such as Freenet and anonymous
remailers while at the same time, as readers here have seen, supporting
the idea of rights management software. In debate or in court, we want
both sides to promote their case as vigorously as possible, in order to
reach the truth. I want to see the same thing in the marketplace - again,
always under the provision that people are participating voluntarily.
Which leads me to my "modest proposal", which is to get rid of copyright
laws, TCPA etc., and replace them with unrestricted, unfettered DRM.
Rather than doing as Rafal suggests and forcing DRM to honor fair use,
we leave it up to the producers and consumers of the DRM content to
negotiate the terms under which it will be licensed. And we leave it
up to the technologists to explore the envelope as far as what kinds of
protections are really possible.
Today, the main camps are pushing for the two extremes.
The content companies want to tighten copyright laws, add DMCA,
the so-called "super-DMCA" laws being passed state by state (see
http://www.freedom-to-tinker.com/), laws to close the "analog hole"
(keep you from photographing your computer screen!) like the Hollings bill
(CBDTPA), etc. Plus they are pushing for DRM, encouraging Microsoft to
do Palladium; and many of these laws are designed to add teeth to DRM.
At the other extreme are the online civil liberties groups, who want to
limit copyright and who oppose DRM, TCPA, Palladium, etc. They encourage
open source, they emphasize the importance of incremental development of
ideas which requires freedom to access and modify existing information.
They tried to strike down copyright extensions with the Eldred lawsuit,
but that failed. Meanwhile they fight against the Hollings bill and
promote other laws to limit the DMCA.
Both of these camps would oppose my proposal; I suspect it is because each
side is afraid that they would lose the technology battle. They would
rather fight in the courts, because then they feel that they will sink
or swim by their own efforts. Ultimately the technology wars will be
won or lost depending on Nature, not on man, and I think this gives
people a feeling of insecurity. They'd rather be at the controls of
the crashing airplane than sitting in the back.
In practice I think Rafal's compromise has a much better chance of
being accepted than mine. Limit and restrict DRM so that it precisely
mimics the provisions of copyright law. Make sure it expires when the
copyright does; make sure people can make N copies for personal use,
that they can time-shift and perform whatever other specific activities
the courts and legislatures decide are appropriate. Decide in the
courts whether professors can make copies for students; whether taking
your music with you in an iPod is personal use, and what if you hook
up speakers so that other people can hear it, etc., etc. All this
will be hashed out in ever-more-complex legislation which gets turned
into mandatory policy that all DRM systems must observe. And meanwhile
there are still people out there hacking their systems and doing their
best to bypass the restrictions. I don't find this very attractive,
but it is a plausible outcome based on the path we are on today.
Hal
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