Our Digital Rights

Originally Published on March 22, 2002

Well, the SSSCA is on it's way to the U.S. Senate now, under the new name of The Consumer Broadband and Digital Television Promotion Act. You can read a discussion of it on Slashdot, or on the Ars Technica OpenForum.  I don't like it. The introduction by Hollings is decent enough, and I think he's doing a reasonable job of providing a solution. The trouble is that this isn't a problem that needs this kind of solution. This is a problem caused by a fundamental misunderstanding of what content is under this information revolution. We as humans aren't used to the abstract. We've been working on it since the classical era, when Plato devised his concept of idealised objects, yet we still can't get used to it. We embrace things that are physical, and when something isn't we pretend that it is. This is precisely the root of the problem now.

Our modern culture has developed something that is innately non-corporeal: the internet, and everything stored in its vast, innumerable yottabytes of storage. Hollings is on the right track in attempting to provide the authors (though in this case, it's actually the companies that own the authors, but that's another rant for another time...) with a method of controlling the distribution of their creative works in order to encourage them to create. That is, after all, what copyright was invented for (and I quote, to "promote the progress of science and the useful arts").  Heck, even without any laws, those authors still have that control. If you don't want it distributed, don't ever let anyone see/hear/use it. Is that a bit harsh? Yeah, obviously, so of course something needs to be done. This is where the frequently abused copyright law comes in. 

Did you know that currently a copyrighted work stays under copyright for 70 years after the creator's death? Copyrights owned by companies will last for 95 years after the first publication! This goes beyond the reason and intent of the original law. Think about this analogy: Cultural mythologies and fairy tales are told and retold all the time, and have been throughout recorded history. Who wrote them originally? Does it matter anymore? Well the authors are all long dead, certainly. But what happened to their stories? They were re-told, often in new and different ways. New stories were told with the old characters. Does this happen today? Not with anything younger than 75 years (published after 1927 as I write this). Some parody is allowed via the fair-use clause, as are few other commonly used caveats. Many people who claim that the copyright laws have become ridiculous insist that characters such as Mickey Mouse should be in the public domain. Perhaps, perhaps not. Allowing anyone to alter the image of Disney's central (some would say ultimate) works would de-value it and everything he envisioned for it. This is certainly true, as it is impossible to control what would be produced. However, so long after Walt Disney's death it's hard to say that the Disney corporation's use of the character is in line with his ideals anyway.

What does this have to do with Digital Rights?  It's an example of legislation losing sight of purpose. Another is the Digital Millennium Copyright Act of 1998 (DMCA). The CBDTPA is simply the newest example. There was a precedent set a few years ago regarding decryption of data. It was the DeCSS. DeCSS was a collection of code written to circumvent the CSS encryption present on DVDs (hence the name De-CSS). If your decoding software and hardware did not properly decode the CSS data on the DVD, you couldn't watch it. This was very similar to the Macrovision decoders present in all VCRs manufactured after the late 90s. Obviously, DeCSS could be and was used for many illegal piracy operations such as distribution of DVD media. Things weren't so clear, however; the problem was that only DVD players and decoding hardware that had been manufactured by companies that had licensed the CSS encryption could play DVDs. This presented an obvious and reasonable use for DeCSS that was technically not legal at the time of it's creation. Computer users running lesser-known or open-source operating systems such as Linux, Free-BSD, and others did not have drivers or software written for their OS of choice. What were they to do? Stop using these "non-commercial" OSes in favour of the more popular ones written by Microsoft and Apple? Though some did this, others decided that their freedom to choose what OS to run should not impose on their ability to watch media that they have legally purchased on the device (and OS) of their choice as well.  This is akin to the problem of Region Coding, another arbitrary evil devised to control the prices of DVD content based on its location of distribution. The solution they found? Use the information contained in DeCSS to write drivers and software allowing them to watch their DVDs. This was not a long-lived solution. A judge declared that DeCSS was illegal (this conclusion was simply an echo of what was on a national scale found in the DMCA) and that anyone possessing it was a criminal. This didn't stop everyone, and in fact some people began to produce t-shirts and other articles of  clothing bearing parts of the DeCSS code!

In 1998, the DMCA was signed into law. It made something like the DeCSS inherently illegal. Although it does not specifically prevent someone from devising methods to circumvent the copy-proofing of data, it does criminalise anyone who attempts to circumvent the general access-control methods of digital-rights management software and hardware. Since most copy-proofing is done through the access-control schemes, this effectively makes it illegal for anyone to attempt to access data on a storage medium, such as a DVD, on a computer or inside of a program not designed to do so. This is commonly used for DVD protection, but can be extended to any creative content produced on a computer. Even something as simple as a text-document is subject to this law if it is encrypted. Many people thought that such a bill would never be passed into law, yet to their surprise it met little official opposition. So far, it seems that the CBDTPA will get the same treatment.

Where am I going with all of this? Well, now that I've brought you all up to speed (my apologies to those already familiar with this information) I'll proceed to make a few observations on this topic. One poster on the Slashdot board (Cyno) makes an intriguing suggestion: that all commercial media be transmitted over proprietary networks, as it seems the corporations truly want, leaving the Internet-proper to the free citizens of the world. This is an incomplete solution, as so many others, but is still an idea worth developing. The problem I see it, as I suggested above, is that the nature of property, and even intellectual property, is grossly misunderstood both by our legislators and the public in general.

The problem is partly this: many see e-content as having a physical manifestation. This makes little sense and is contrary to the idea so often flaunted by the media of the "Information Age" where information freely flies from one person to the next. Ah, what an ideal world that would be!  The oft-quoted phrase "information wants to be free" in all of its meanings appears to be true, for the most part, in stark opposition to all attempts to prove otherwise by the major corporations.  Rather than fighting the very nature of the so-called Info-Age, these companies need to enter the 21st century by rebuilding their centuries-old business models for something that might embrace it instead. Artist and author Scott McCloud has often suggested the idea of micro-payments, while a wonderful idea it is under present conditions impossible in practice and has even been ridiculed by another popular artist.

This would go a long way to stem the problem.  Right now, human nature is out-running corporate creativity.  Humans are lazy. It's much easier (not to mention cheaper) to download music, TV episodes, even a copy of the Academy's advance DVD copy of Lord of The Rings than it is to purchase them at the local store, or even online. Sometimes, it's the "only option" to acquire certain titles such as many Japanese films, or music-group "Orbital's" latest music video, thanks to region coding.  These DVDs are not yet sold in the U.S., and depending on their ability to attract a domestic distributor, they may never see these shores. Legally, that is. Digitally, and under current law, illegally, much of this content is already here, being enjoyed by fans old and new. This fate almost befell a software title that has been hailed as one of the best adventure titles of all time, The Longest Journey. Produced by a Norwegian group of gaming enthusiasts, the game was causing quite a stir in Europe, but was having difficulty being picked up by a distributor in the U.S. Meanwhile, it was being downloaded wildly from peer-to-peer sharing software and pirate-software "warez" sites in unbelievable amounts.  Purchasing it from a European distributor was expensive, and more importantly, inconvenient. I'll repeat: humans are lazy.

I don't mean to excuse the behaviour. I admit to the same vice of laziness, and although I've never downloaded a full-length movie or a copy of The Longest Journey (I legally own my copy, though I had to wait over a year for the opportunity), I have downloaded music, and have been doing it since before it became a universally popular pastime for even the technically-inept. Occasionally I have purchased something that I first tried by less-than-legal methods, but not as much as some say I should. Am I guilty of stealing? That's an issue that's not as clear as the RIAA and MPAA would have you believe. Stealing, in the conventional sense implies that you have taken something away from someone else. They have thus lost the utility of whatever it was you have stolen. Such a term has no meaning in a system where copying something creates more potential utility, unlike the transference of utility in conventional stealing. I offer an analogy: if I could create a duplicate of your dinner in every way, without altering your food in the least, two people could eat what was once only enough food for one. Would you accuse me of stealing your food?  Unlikely. Unless a "food replicator" ala Star Trek becomes reality, however, this remains impossible. This does not change the analogy's relevance to the digital world, where such an act does not defy the laws of physics as we know them.

One of the misunderstandings regarding this particular issue stem from this: businesses are built on the premise of predictable gains and losses. Your possession of media you did not legally purchase infers, to them, a loss of potential profit. In the past, this could be directly correlated to theft. If you steal a CD in a store, the value of the CD is lost (though technically the reseller is the one taking the loss as they've already paid, even if on "credit", for the inventory stock) and yet you have gained the utility of the CD. Something for nothing, though the dream of every American since its inception, is generally frowned upon.  Call it a hold-over from the ideals of the Puritans, but we still value working for what you own.

Sadly, the "ownership" of media is truly questionable here, too. You do not own the music on a CD you buy. You own the CD and the package it's in. You also own a license to listen to the music, and possibly make back-up copies, etc. You can only do with the music as the true owners please. This is how the term "stealing" is justified. The owners of the content are not permitting the copying and electronic distribution of their work. This makes conventional sense, but as many point out, nothing it truly lost, so nothing was stolen. This is not a wholly true argument. When enough people have "acquired" the content through digital mediums, there is a noticable loss of revenue. The businesses are losing money because they are letting others utilise the internet in distributing their content. In effect, they've cut themselves out of the client-business relationship so revered since the days of the Roman Republic by failing to make sure they're the best source for their own product.

This brings me back to my point which is one of convenience and economics. If it were as easy to download the music (and whatever else my measly 56k connection would allow me access to) legally as it is to do so "extra-legally" I'd do it.  Scott McCloud's "micro-payments" are a very reasonable solution for this. If it cost a only a few cents for access to the server and royalty going to the author, I'd be all for it. If it was as simple as going to Audiogalaxy, choosing my tunes, and downloading them from the record label, or better yet, the artist themselves (since in the era of near-free distribution to all points of the world, distributors are practically unnecessary), I'm sure many more people would adopt these methods of distribution. What we're seeing here is not that we need to protect our current media, but rather that we need to find ways to distribute it in ways that utilise the nature of the internet while taking advantage of human nature. Fighting human nature has never been successful in any point in history for any length of time, and I have no reason to believe they've finally found a way.

What does this bill mean to me? It means that under the general intent of this bill (it's difficult to tell at this point how much of it will be adopted if it becomes law) it would be illegal for me as a programmer to write software that doesn't provide compliance with this government-mandated protection. Hollings mentions that this scheme will be open implying that anyone would have access to it, thus solving this problem. This of course raises the question of how solid this the protection will be from would-be "criminals", but no form of protection is truly safe so this is essentially a moot point, really. The problem with the open nature of the protection can be seen in the case of CSS, as it will also likely need to be licensed. This makes reasonable sense, but those, like myself, who cannot afford to purchase the license will not be able to legally produce software. Voila! Now commercial software companies have a government-endorsed monopoly on software production. This, I shouldn't have to point out, is not a good thing.

Since the events in New York City last year, it seems many Americans have practically been begging to have their fundamental rights (including those guaranteed by the first amendment) taken away in exchange for what they hope will be added "security".  This should ring a few alarms in the mind of anyone who has studied even a rudimentary amount of history. Potential for great danger can be found down that path. Fortunately, now that over six months have passed, the Great American Apathy™ has set in (though not without an inflated sense of U.S.-centric egotistic faux-patriotism) and people have once again regained most of the common-sense sense they began with, however much or little that may be. I hope this remains true, not just for the sake of this bill's future, but for the many others that are being written, and even those not yet even thought of; they threaten to destroy the premises that this country was presumably founded upon.

Feinstein is one of the Senators backing Hollings on this, and as she is one of the Senators representing my state, I'm going to write to her, as well as Boxer. I've never bothered much with politics, though I find it incidentally intriguing (and I do vote), but this is an issue I feel that they should at least examine, and know that some of their constituents disagree with it. I may not be politically saavy, but I know a thing or two about technology and free-speech. This web-site (and indeed the whole Internet, World-Wide-Web, Usenet, etc.) exists because of the work of countless individuals whose effort, if this bill becomes law, may very well cease to have any meaning. The future of our ability to control what we own and create is about to disappear and few are even paying attention.

05-18-2002 - A new slashdot discussion regarding this can be found here.

04-08-2002 - An error in this article regarding the temporal relationship of the De-CSS case and the DMCA has been corrected.