Wednesday, June 16, 2010

Something wicked this way comes. Open locks, Whoever knocks!

Reader – Alright, Writer, we’ve been dancing around this for too long. Let’s talk about digital locks.

Writer – Do we have to?

Reader – Are you afraid to?

Writer – No, not afraid, just… well, weary. But have at! – how tough can you be? You’re me, after all.

Reader – Why do you want to lock your writing away from consumers?

Writer – Oh, that’s easy. I hate consumers. People who read my writing really bug me. Where do they get off, engaging with my published thought? As if a writer is so egotistical he actually wants people to read his work.

Reader – Wow. I did not see that coming.

Writer – Dude, don’t be dense. The very last thing I want to do is stop people from reading my work. On the other hand, this is not a hobby. I write for a living. When my kids go to university to learn about things like copyright law and social history from very well paid and tenured faculty, it will be a writer’s hard-earned wages paying the tuition.

Reader – So, if you want as many people as possible to read your work, why lock it away?

Writer – Who’s locking my work away?

Reader – DRM – that’s who. Creative industries put DRM on their content to limit what the consumer can do with it. Sure, they say it’s to try and control piracy, but the unintended consequence of that is that it can also stop fair dealing. That’s why people like Michael Geist call DRM “digital locks.” DRM locks content so the consumer can’t use it the way she wants to.

Writer – Alright, I’m no fancy Ottawa law professor, so let’s dumb this down a notch. Give me an example of a digital lock on content.

Reader – Well, this Kobo e-reader you and I have been enjoying for the last couple of weeks. The content may be in ePub format, but it does have DRM on it.

Writer – Didn’t we talk about this already? Kobo already provides me with multiple digital copies, so back-ups are not a worry for me. Satire, quoting, whatever, it’s all available to me. Maybe I can’t copy and paste, but I don’t know where in fair dealing I should expect the right to use a specific digital tool to interact with content.

Reader – I know, I know, but doesn’t it bother you that someone else put a lock on it, and you can’t break it?

Writer – I don’t know, does it bother you that people lock their houses, or their cars?

Reader – But that’s their property – with DRM, someone is locking your property, and you don’t necessarily get the keys to the lock.

Writer – Wait, this is where I get a bit confused. Just what have I bought when I buy a book from Kobo. Let’s say I buy The Bishop’s Man. What do I own?

Reader – You own The Bishop’s Man.

Writer – Except copyright law says Linden McIntyre owns The Bishop’s Man. How can we both own the same thing? Can two people who don’t know each other and have no legal contract between them jointly own the same piece of private property?

Reader – Look, you can’t use physical property analogies to discuss intellectual property or the digital world. These things are so different they simply can’t be compared.

Writer – Okay, let’s not talk about property, physical or digital. Let’s talk about the concept of ownership. Do we believe in that?

Reader – Absolutely… and that’s my point. If you buy a book, don’t you own it? Why shouldn’t you be able to take off any lock that’s on it when you buy it?

Writer – Well, I guess that’s my question. When I buy The Bishop’s Man, what have I bought? And remember, Linden McIntyre is not selling me the copyright ownership to his book. So… what have I bought?

Reader – I’m stumped.

Writer – A copy, dude. When I buy The Bishop’s Man, I am not buying the text to do with whatever I want. I am buying a copy, and a copy by its nature is less than the text. I mean, when you buy a book do you think you can suddenly go to Hollywood and sell the movie rights to that book?

Reader – Don’t be ridiculous.

Writer – Well, is it any more ridiculous to think you can buy a copy of anything – a book, a song, an album, a movie – and then act like you have total intellectual property ownership over the original? Sharing, recopying, uploading, downloading – these rights belong to the IP owner, not the copy owner. There’s a reason copies are generally cheap. I mean, if Lady Gaga was going to sell you the copyright to one of her songs, do you think she’d charge you 99 cents for it?

Reader – Alright, point taken. Still, these locks concern a lot of people. I mean C-32 gives consumers a bunch of new exceptions to strict copyright, but if the copyright owner locks her content, those new rights don’t apply.

Writer – Again… example please. I can’t expect tenure and a job for life in Internet law for quite some time. Spell it out.

Reader – Okay, C-32 says you can make a back-up copy for personal use, but what if some movie company locks their DVDs so you can’t copy them? Suddenly, a right you have under law is not available to you.

Writer – Wow, I guess if I really wanted to always exercise my right to a back-up copy I would definitely NOT be buying movies from that company.

Reader – Okay, buyer beware. But what if every DVD came with copy protection?

Writer – In that case, I would definitely start a DVD company that offered DVDs you could copy. Because when you recognize a hole in the market, you should fill that sucker. I would negotiate professional distribution deals with studios that allowed back-up copies and I would make a killing. And it would all be legal. You know, having laws protecting digital locks doesn’t mean we have to buy OR sell content that is locked.

Reader – But, I thought you liked DRM?

Writer – Nope, I think DRM is an unfortunate necessity of a terrible economic environment for professional creators and their business partners. What I like is respect for intellectual property and creation.

Reader – You know that DRM doesn’t actually stop piracy? Any experienced tech-head can break a digital lock in less than a day.

Writer – I am aware of that. You know that anyone with a crowbar can break a padlock in under ten minutes?

Reader – What’s your point?

Writer – Locks don’t have to be unbreakable; they just have to exist. Locks work in concert with the law to say “From this point on, no trespassing.” For the most part, that message will stop folks from trespassing, but the determined will always get through. And that’s why we have laws against breaking locks. You know… the “breaking” part of “breaking and entering?”

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Pieter Hulshoff said...

"Okay, buyer beware. But what if every DVD came with copy protection?"

What if? That's already the case! I'm not aware of any dvd by any major company that does not use the CSS copy protection, but I'd love for you to show me some. You are not allowed to back up (most of) your dvd collection in Europe and the USA (and soon Canada), under any circumstances.

With regards to "The Bishop’s Man": when I buy it, it's mine to do with as I please within the boundaries of copyright law, just like the car I bought is mine to use within the boundaries of traffic law. There are limitations on use on practically everything you own, but that doesn't make it not yours. I don't buy a "copy" of a car, even though there are millions out there practically just like it.

Anonymous said...


"You are not allowed to back up (most of) your dvd collection in Europe and the USA (and soon Canada), under any circumstances."

So? Just because technology affords us the opportunity to make a backup of something, that doesn't mean we have a God-given right to do so.

When you come home from Ikea with your new söfa, do you make a backup in case your dog pees on it?

Pieter Hulshoff said...


Well, not a God-given right perhaps, but unless it's illegal by law it sure is a law-given right. Would I make a backup copy of my new sofa, tv, car, etc.? If technology would allow it, you betcha! (I actually own 4 dogs...)

I figure we're about 50-100 years away of Star Trek like replicators (we're getting there with 3D printers already). By then we'll probably have the same discussions about food, tools, cars, etc. that we currently have about software, music, films, and books: when the cost of making a copy goes down to zero, how do you create enough incentive for people to make new originals?

John said...

Well... if we are indeed just a short century away from science fiction becoming reality, then by all means let's radically change our copyright law right now so our working artists can get ready for the new world order.

Pieter, if you won't even admit to the basic facts of intellectual property -- that the consumer buys a copy and not the original (with all attendant IP rights) -- then you need to find a new virtual place to spend you seemingly endless free time.

I'll work with your car analogy if you want me to. I don't mind physical property analogies being applied to intellectual property, because I think there are lots of instances where they makes sense. Thanks for agreeing with THAT, at least.

You may buy a physical car, a BMW, say (all you software guys are rich, right?), but what you paid for is one single car, not the IP rights to that car manufacturer's design, manufacturing technique and branding. You do not become part owner of BMW just by buying one of their cars. So, in a very real sense, YES, you are just buying a copy.

I know you're waiting for the replicator to be invented, but until then, try building your own replica of your BMW, and then selling it on the open market AS a BMW product.

That is, essentially, the way content creators and their related industrial partners view unauthorized file-sharing and piracy. You have acquired a copy of their product, but you are deciding to act as though you are a part owner of the original. Address THAT problem in a serious way -- as so many professional consumer advocates refuse to do -- and I predict you will see lots of content that allows genuine back-up copying.

Until unauthorized copying is addressed in good faith from the consumer side, what incentive does the content industry have to unlock?

Darryl said...

Hello John.

Are you getting tired of talking to yourself yet? I must say it is terribly convenient to be able to control both sides of the debate. Perhaps being a novelist you are simply to use to being able to control the plot.

"You have acquired a copy of their product, but you are deciding to act as though you are a part owner of the original. Address THAT problem in a serious way "

OK, how about we adapt copyright law to the digital world by specifically exempting from rights holder control, any copies that are made as a function of the private enjoyment of the media. This would allow users to keep their rights of continued enjoyment of the content they have purchased, even as technology changes, and would still give rights holders the ability to control all other copies.

The problem is that traditional uses of content did not use to require copies to be made. Now that it does, rights holders are trying to use that as an excuse to micromanage private use of the works. This sort of exemption would allow both groups to maintain their traditional rights.

Pieter Hulshoff said...

Dear John,

"Well... if we are indeed just a short century away from science fiction becoming reality, then by all means let's radically change our copyright law right now so our working artists can get ready for the new world order."

I think you misunderstood my point here: Contrary to some of your discussion partners I very much believe in the need for copyright law in order to provide the incentives to create new originals. I was merely curious to how we would discuss these matters if it was physical products like food and cars if such copying technology were available today. It might give us some insights on how to tackle this problem.

"Pieter, if you won't even admit to the basic facts of intellectual property"

We can argue semantics here over the definition of the word "copy", but the fact is that when I'm buying a physical product like a book or a car, I consider that product to be mine, and to be used freely within the boundaries of the applicable laws.

"I know you're waiting for the replicator to be invented, but until then, try building your own replica of your BMW, and then selling it on the open market AS a BMW product."

Trying to sell it as a BMW product would run me afoul of trademark laws, but other than that there's no law preventing me from making a perfect copy of a BMW car with my own materials and tools for my own personal use, or even sell the results of my labour to someone else. Copyright law is limited to a small group of products (music, film, books, photographs, etc.), and does not apply to food, fashion, etc.

"Until unauthorized copying is addressed in good faith from the consumer side, what incentive does the content industry have to unlock?"

1. As you already agreed to: digital locks don't prevent unauthorized copying.
2. That digital lock is on the physical property that I own (the cd/dvd, not the intellectual property, the physical property).

Aside from that discussion though, I'd like to challenge you to give me a definition of the word "circumvent" here. When I watch a dvd on my computer, the content is decrypted by the software dvd player, yet somehow when I write my own software to do the exact same thing I'm circumventing? Digital locks generally aren't "broken" like physical locks, and often not even "bypassed". They're opened in the exact same way every legal product does, yet somewhere there's an invisible line crossed where legal decrypting becomes circumventing.

John said...


How does your suggestion address unauthorized copying from the consumer side? That is what you were asked to do. It's disappointing that you'd ignore that request, but not at all surprising. Sometimes, even when you don't control both sides of the conversation, you know exactly how it will go.

My enjoyment of Kobo books requires absolutely NO unauthorized copying. So your point about the requirements of digital content is simply incorrect.

Pieter -- if you buy a copy of IP content with a lock on it, that's what you've bought... a locked copy with defined limitations. Don't want the limitations? Don't buy it.

Darryl said...


FYI, I'm not sure your case for making an exact BMW replica is as clear as you think. [link]

Darryl said...

"How does your suggestion address unauthorized copying from the consumer side?"

Well, perhaps by making some of those unauthorised copies which should be considered legitimate, outside of the exclusive rights of copyright holders.

If what you are really asking me how this deals with filesharing. It doesn't. But then, as we already established, neither does DRM, so why are you asking me to solve a problem which you can't solve either?

"My enjoyment of Kobo books requires absolutely NO unauthorized copying. So your point about the requirements of digital content is simply incorrect."

This is correct, but it DOES involve authorized copying. For you to get that authorization you had to agree to licence conditions. The problem with that is exactly the same as the problem with DRM in this legislation. You have to give up ALL YOUR RIGHTS as a consumer and accept only the rights that the copyright holder sees fit to let you have. Or are you saying that it is in ANY WAY possible for you to acquire an ebook of any copyrighted work without buying a licence? If you answer no to this question, then my point is indeed correct.

Anonymous said...

In that case, I would definitely start a DVD company that offered DVDs you could copy. Because when you recognize a hole in the market, you should fill that sucker.

So you're suggestion is that because DRM is on every DVD it will be easy for someone to start a new 'DVD' company and compete with the MPAA, as if they aren't a legally sanctioned monopoly.

This is the problem of DRM, lock in schemes are used in conjunction with anti-competitive practices to stop you from format shifting or making legal backups.

Although I did like the part where you debated a fictitious person and then had them surrender under the power of your logic.

Anonymous said...

I don't get digital locks, they never work so I guess there's a hope in the future that someone will find one that does. Any-who, I watch DVD's on my Ubuntu multimedia system. The only difference between this law passing or not is that if it does I'll be a criminal when I watch the DVD's I bought on my Ubuntu System.
How does this make sense? How does this help creators? And how does this not kill Innovation?

John said...


I'm not fictitious. I actually exist.

Andrew said...

Digital locks have not worked so far, and never will work. They are a "red herring" that simply gives a corporate interest license to pursue someone who circumvents them. Rather than actually trying to prove that a person copied a work with malicious intent, they can use the very act of circumvention as a point to pursue litigation.

If I buy a DVD, I think it is "fair" that I should be able to rip that to watch on my iPhone. Where C-32 gets it "right" is that this behaviour is permitted UP UNTIL THE POINT that you need DRM circumvention tools. As someone previously pointed out, every DVD sold is encrypted, so simply making a copy to view on my iPhone will be breaking the law.

This will be exploited by many industries. Have a book that you want to read on multiple devices? You'll have to buy it multiple times, since they'll wrap up each format in DRM. And who could blame them? It will force the consumers to spend more money on their media.

The digital locks clauses need to disappear from C-32. I'm not interested in lining someone else's pockets purchasing things I already own simply because of some flimsy technical loophole.

Anonymous said...

I'm not fictitious. I actually exist.

I trust that you are just one person though right, you didn't actually debate someone here? You wrote out a one-sided argument which you then pretended to win. It was a hilarious showing of narcissism.

Pieter Hulshoff said...

Dear John,

"Pieter -- if you buy a copy of IP content with a lock on it, that's what you've bought... a locked copy with defined limitations. Don't want the limitations? Don't buy it."

I realize that you and I will probably continue to disagree on this point, but I would still like to give you my take on this:
We as creators have been given a limited monopoly on our works through copyright law. This copyright is intended as a carefully crafted balance of rights and limitations, and if we want others to respect our rights, then we also have to respect the limitations on those rights. For me this implies that you cannot take away those limitations by means of digital locks and DRM. I also believe that this "take it or leave it" approach is an abuse of our monopoly position as copyright holders.

In the mean time you've carefully avoided most of my points from my previous posting, and in particular my question about what in your eyes qualifies as "circumvention". I would really like your view on this.

John said...


Why do you assume I must respond to every one of your questions? I have my opinions; you have yours. I can live with that. Why can't you?

What do you want me to say? -- the digital age has changed the concept of trespass? It hasn't.

I lock the gate to my field with a simple hook and eye. Occasionally, hikers open the lock to hike through. If they do it respectfully -- ask first, check for "no trespassing" signs, check for livestock, re-lock the gate, do no harm to my property -- chances are very, very good I will not care that they open my lock.

If they don't ask, don't respect any signage, leave the gate wide open, scatter my sheep, and litter everywhere, then chances are I will be using a padlock. And, I will be ready to prosecute when they break the padlock.

I'm not even going to bother to fill in the analogy for you. I think it's pretty clear.

Respect, as you have noted, is a two-way street. I say again -- if consumer groups take a serious run at helping professional creators and industry minimize piracy, then there will be lots of happy hiking.

Until then, wait till I open my gate.

Darryl said...

"if consumer groups take a serious run at helping professional creators and industry minimize piracy, then there will be lots of happy hiking."

I'm not quite sure what you expect consumer groups to do to this end, let alone why you think it should fall upon them to fix your problem in the first place.

You know this whole; hold fair dealing rights ransom thing until somebody else solves your problem for you; could easily be construed as a racket.

Ross said...

Consider a physical property analogy of digital locks:

Suppose a publisher sells a (traditional printed) book with very tiny print as a "lock". The print is so small that you cannot read the book without a device to enlarge the print. Along with the tiny-print book, the publisher includes a special magnifying glass that makes the tiny words legible to read/consume the book.

While sounding ridiculous, I think it is a fair representation of what most digital locks are:
- Annoying. An uneeded device that is required to access the creative work in an authorized manner
- Weak protection. Usually is trivial to defeat
- Vendor lock-in. Often locks consumers into the original vendor of the DRM

Now, under the proposed law, using a 3rd-party magnifying glass would be a "circumvention device" and so would be illegal to use, regardless of whether the underlying work had been purchased. It would also be illegal to read the book with special reading glasses, to scan the book, to photocopy and enlarge the book, etc. Any means of accessing the book, other than as authorized by the publisher would not be permitted.
It would also be illegal to sell such circumvention devices.

So let's consider the impact by looking at different consumer-groups.

1) Honest consumers. Honest customers would have bought the book without the lock (they are honest afterall). With the lock, the honest customers are inconvenienced and annoyed by the lock, but put up with it because they have no other legal choice (though some of the honest customers decide the lock is too much hassle, and don't purchase the book, whereas they would have without a lock). All of these honest customers are worse off (either they are annoyed, or they don't have a book they valued enough to buy without locks). The publisher is worse off because they sell fewer copies to this group of people and meanwhile they have to pay the lock vendor for use of their magnifying glass and tiny-print system. Only the DRM vendors win in this case.
2) Dishonest (infringing) consumers (Some people call them pirates, but they don't wear patches). Copyright infringers did not care to pay for the work without a lock, and they are still not going to pay for it with a lock. As we've seen with every DRM/encryption scheme out there -- it is defeated within days (if not hours) of release and the DRM-free version is available on bittorrent, edonkey and other trading networks extremely quickly. So these "dishonest" people will just download the DRM free version of the content. They were breaking the law before the lock and after the lock. The dishonest consumer wasn't buying before and isn't buying now. The creator does not sell more.
3) Not-quite-honest people. These are people who not completely honest, but not always dishonest either. They'll pay for content when its easy and affordable, but they'll infringe copyright when they can't afford it or its more convenient. Under a digital locks regime, these people now have more incentive to not pay for the product (it is after all more restricted and so is an inferior product as compared to an unlocked equivalent). Whereas the "pirated" copy of the product, is free of DRM and restrictions and so is more appealing to use. So these consumers, who prefer convenience and lower price, now have _more_ reason to infringe copyright. The the creator sells less content (less revenue), still pays the DRM vendor. The subset of not-quite-honest who don't infringe have a worse experience; whereas the subset that do infringe get a cheaper more convenient product.

Summary: A digital lock regime is worse for creators (lower sales), consumers; but DRM providers and lawyers (who are needed more often due to the heightened complexity of the law, both for contracts and prosecution) make off like bandits.

John said...

Yes, Darryl, my locking my gate until people learn to respect my property is just a racket to steal your consumer rights. Also, I'm in this scheme with the lawyers and and DRM providers. It's a giant conspiracy.

Honestly, your circles of logic are more diabolical than Dante could have imagined.

But not nearly so well expressed.

Good night.

Pieter Hulshoff said...

Dear John,

Obviously you don't have to answer every one of my questions, but most of our discussions are about things we disagree about. This question was meant to get a feel of how you view this new law to find some common ground.

Your analogy indeed does not need an explanation, but it does need a small change: you're not locking the gate to your field. You're locking the gate to my field to which you only kept some limited rights when you sold it to me.

Let's change the analogy from field to car. BMW sells you a car with locks, and provides you with the key. Then they tell you that you're not allowed to let anyone else drive in it, not even as a passenger, nor can you sell it to someone else when you want a new one. You think: I'm not gonna buy that, and start looking around for alternatives. Sure, it won't be a BMW, but at least you can use it how you want to. However: practically every carmaker out there has adopted the same policy, and the few that don't aren't to your liking at all. So, you decide you'll just take your bike from now on, right? I mean: you could easily give your key to someone else or open the door for them, but that's just been made illegal as "circumvention", so you obviously can't do that.

That's about the status of digital entertainment these days. It's locked, you get the key with it (otherwise you couldn't watch it), but there are all sorts of strings attached. Almost all of the works are produced by a small amount of companies, and they all use the same lock and rights management. So, you either have the choice to accept the terms or you'll have to skip the enjoyment of yet another generation of digital works. Ignoring the lock is easy (you got the key after all), but also illegal due to anti-circumvention laws.

PS: I've noticed we could all step up the civility of our posts a notch or two again. My apologies for slacking in that department as well.

Darryl said...

Yeah, well, that's all well and good John, but the part you miss in this hiker-gate analogy thingy of yours is that; while it might be your gate, and the pretty little house down the path might be your house, the gate and the path are both on a right-of-way over my land. So by locking your gate you are denying access to BOTH our lands. Now you tell me you wont unlock it until I stop the hooligans that have been coming in the dead of night and throwing rocks at your windows. Pfff, forget it. Excuse me whilst I go to the shed to retrieve my bolt cutters.

In case you are having trouble with the added references here.
house=your content
right-of-way=my kindle/DVD-player/iPhone/etc

But you are right, we've been having this conversation now for years, and I tire of it as well. Honestly, I've just about given up the idea that you might ever approach this in a rational and reasonable manner.

Pieter Hulshoff said...


"Excuse me whilst I go to the shed to retrieve my bolt cutters."

Why do that? You already have the key after all, since John gave it to you.

Darryl said...

"Why do that? You already have the key after all, since John gave it to you."

Actually Pieter, you are mistake. It is a common misconception as well. With DRM, the owner of the device for reading the media NEVER gets the key. The manufacturer might, but never the technology owner.

So I guess what we need is to add one more feature to this odd analogy. What John has done is posted a guard by the gate who only takes orders from John, and will only let people through who John wants to let through, and only to do things that John thinks is appropriate. I cannot reason with either the guard nor John, and am totally at the mercy of his discretion as to whether I am allowed through this gate at all. Even though, as I said, the gate and the path to his house sits on my land.

So I guess don't need to head to the shed for bolt cutters after all. I need to go to my kitchen for the butcher's knife!

Pieter Hulshoff said...

I'm sorry Darryl, but we disagree here. With DRM I do have the key. It may not be easily accessible, and hidden in my player, but I do have it. If hidden, I just have to retrieve it, or find someone who can retrieve it for me, but then I can use it any way I see fit. Well, aside from those pesky circumvention laws of course.

Pieter Hulshoff said...

Hmm, just ran into this article:
John, I take it from a consistency point of view you're against this bill?

Darryl said...

OK, you got me on a technicality. Yes, you have the key embedded somewhere inside the device. But as you say. It is inaccessible. An inaccessible key is about as useful as no key at all, so I am not sure why you are insisting on making this distinction. To retrieve it would also be considered circumvention, and therefore illegal under this bill.

WRT, cell phones. Please note that the provision for breaking these locks in this bill is very narrow. You can only break the lock AFTER your contract is up, and you can only break the lock for the purpose of transferring to a different carrier. You will still not have any right to jail break your iPhone so that you can run software other than what Apple and your network provider wants you to run.

Pieter Hulshoff said...

OK, you got me on a technicality.

The law is all about such technicalities I fear. :) For example: since the key is not a copyrighted work, any protection used to hide that key is not considered protected by anti-circumvention laws. Retrieving the key's not an illegal act.

Darryl said...

Pieter, IANAL, but I think you are woefully mistaken regarding what would or would not be an illegal act here.

Pieter Hulshoff said...

I'm not a lawyer either, but I've been reading copyright laws and doing copyright lobbying for about 10 years now; I have a pretty decent idea of what's legal and what is not. They tried to convict John Lech Johansen for finding the CSS and DRMS encryption keys, and failed. When the judge asked which computer system John was supposed to have broken into to get those keys, the industry lawyer replied his own. Apparently not a very convincing argument to a judge.

Darryl said...

Pieter, keep in mind he was prosecuted in Norway, under Norwegian law. Also keep in mind that both the DMCA and C-62 have exemptions for security research that would allow for such reverse engineering. Finally note that in the US, not only is it illegal to posses the fruits of Jon's labour, (The DeCSS code) but it is illegal to even link to it.

So while it may be fine to retrieve the key. Actually using it afterwards would still be circumvention.

Pieter Hulshoff said...
This comment has been removed by the author.
Pieter Hulshoff said...

No need to remind me. I'm very much aware that although neither having the key nor retrieving the key is illegal, using that key to "circumvent" the digital lock is illegal under anti-circumvention laws. DeCSS can be considered an illegal circumvention device, even though it just decrypts a dvd like any other dvd player would.

I've got some discussions scheduled with Dutch politicians in the next months, during which I certainly wish to discuss with them what the definition of "circumvent" is. In my eyes, opening a lock with the key should not be considered circumvention.

Actinolite said...

Fair dealing limitations on copyright have been long established. If we are to keep the pretense of having these limitations, then any protection for DRM or TPMs may extend only so far as copyright protection warrants.

Because it is impossible for any TPM to allow for fair dealing exceptions, it must therefore be permissible to break such TPMs to exercise one's fair dealing rights. To argue otherwise is to argue for the removal of fair dealing. If you want to have that argument, fine, but at least be consistent about it.

Fair dealing says that I have the right to take a clip of a film and remix it into my own content, such as a review of said film. I can't decide to only review films that don't use TPMs.

If your copyrights are being violated by downloaders and filesharers, that doesn't give you the right to take away my rights as compensation.

Enough with the metaphors. Copyright isn't like a car. Either fair dealing exists, or it doesn't. Let's pick one and move on.

John said...

Actinolite -- thanks for your comments.

I neither believe it is impossible for TPMs to provide for fair dealing (what's that sound? -- oh, the tech guys are vibrating again), nor do I believe my fair dealing privileges guarantee me a specific method for carrying them out.

Combine legal language with technology and anything is possible. Just look at the solutions Michael Geist is suggesting right now. They are exactly that - TPM and law combinations to provide legal ways through. I don't always agree with where he draws lines, because I think he consistently privileges consumerism over creation, which I find, frankly, a sad commentary on society. Still, that kind of negotiated passage will be worked out. I hope it is done in a way that preserves the value of creative industry.

I'm am 100% with you in wishing you could easily take a film clip to use in your review work, and I also have faith that media provisions will carry forward, no matter the final anti-circumvention language.

Pieter Hulshoff said...

Dear John,

I'm rather surprised you would support the language Prof. Geist is proposing with regards to anti-circumvention, because when I suggested exactly the same (limit the anti-circumvention clauses to acts illegal under copyright law), you seemed less than enthusiastic. Perhaps I was unclear in my explanation?

Anonymous said...

Maybe if you understood software you would understand that legal support for digital locks gives software developers and their bosses the ability to craft criminal law.

Yes I said it, they can craft criminal law, they can make you a criminal with the flick of a switch, intentionally or not. Essentially you're allowing business to set ghostly invisible rules which determine if you're a criminal or not. And if you go looking you might just trip over one of these locks and become a criminal.

Currently only politicians can make laws that make you a criminal, but now everyone can make just about anyone into a criminal with some relatively naive software.

I'm not about to let someone who isn't an expert in software legislate this kind of power, and you should be ashamed for pretending to know so much about digital locks, TPM, DRM etc.

The fact is that software in malleable and this C32 turns you into a criminal the second you break any TPM, intentional or not.

Copyright infringement is already illegal and you're already free to use DRM or TPM. It doesn't mean you deserve the right to make invisible rules that turn anyone with a smidgeon of creativity and curiosity into a criminal.

So what did we learn? We learned that you're not a software expert, you don't know about this sort of thing, you're supporting a bill based on a loose feeling about it yet you don't understand the ramifications. You're supporting it because in essence it sounds ok but you ignore the nitty gritties, which is where software and the law come in and this is where the bill turns into a demon allowing business to write up their own criminal law.

Anonymous said...

If you want to see what the powers that be already say about magical rule invention then check this out:

If a videogamer cheats they could be liable for breaking TPM to enable cheating. Suddenly cheating a videogame is a criminal offense?

Imagine your surprise when your children are supeona'd because they just had to get past that boss in their videogame.

So ephemeral videogame rules are now enforced by copyright legislation? Hmmm TPM creeps into everything that executes.