- Awesome posts by Ethan Zuckerman on Burt Rutan and innovation, and by Kathy Sierra on how constraints create innovation.
- Music distributors are wising up that iTunes and Zune DRM are a way of protecting Apple and MS’s market share, not protecting artists. Yay. (via the excellent Furdlog)
October, 2006
16
Oct 06
couple quick links
15
Oct 06
you can’t always keep what you want…
I’m not sure why exactly it went away, but my first IRC home has passed on. Like Swanno, I’ve found that law school and IRC are pretty much mutually exclusive, so it isn’t exactly a big direct loss out of my life, but I have generally very strong and very positive memories of that channel. It’s like finding out your old neighborhood bar, or maybe your college dorm, have suddenly ceased to exist- maybe you didn’t go there so much anymore, but if you spent a lot of time there, you have memories- even if in this case they were all contained within the xchat window.
Some particular memories that jump out were the discussion of my 3,600 mile-long penis (this when Krissa left for Africa- chatting with the friends in #dhg really helped me keep what little of my sanity there was that year) and getting told ‘hey, an airplane just crashed into the world trade center- get to a TV’ on the morning of 9/11, getting to the TV just in time to see #2, then frantically talking throughout that long, long day, until my laptop died. Lots of others, I’m sure… remembering the chuckle on Dan’s mom’s face at his wedding when she said that she understood I was Dan’s friend basically because of time spent together online. She was trying very hard to grok it :)
Anyway… just a reminder that online communities are very much like real ones- you can make very, very real friends there, and just like other communities, sometimes their time passes.
15
Oct 06
Creative Commons Salon New York
On Friday night I went to NuBlu for the first NYC Creative Commons Salon. It was an interesting little get together. Some random thoughts:
- I put up some pictures. Like all my pictures, they are CC-SA, but unfortunately the gallery hack I was using to indicate licensing is busted. Go ahead and enjoy them.
- As far as I could tell, only one of the three artists who presented actually uses CC, which was disappointing.
- Licensing aside, the art was a fun/funky mix of digital art. Paul Slocum showed off some cool music stuff, including a printer he’d hacked to play music via a combination of ‘mere’ printer noises and cassette tapes wrapped around printer drums. More here. Evan Harper of Eyebeam and Marisa Olson of Rhizome.org also presented- some neat stuff (some of it documented in the picture gallery, including Marisa’s tape gallery, and Evan’s… well, guerrilla seating and all-porn browser. What more can you say than ‘all-porn browser’. :)
- Nublu is, without doubt, the trendiest (or wannabe trendiest) club I’ve ever been in- they are too hip to ‘have a sign over the door’. Still, nice space and very good DJ after the Salon.
- Was good to meet some new folks and see Ronald.
Definitely glad I went, and will definitely make the next one.
By the way, for those in the New York area who are interested in this kind of thing, there is a great InfoLaw New York calendar full of events like this one, maintained by the kids at the NYULS Information Law Institute. Definitely worth subscribing to in your calendar tool of choice.
15
Oct 06
I know I’m a dork because…
… I spent most of my meals this weekend reading a ~100 page set of documents on EU competition law (aka antitrust law, for americans.) For an optional seminar.
Perhaps worse, I could hardly read any of it without thinking ‘microsoft probably violates this one, and this one, and….’ I’m pretty sure their behavior with regards to IE/Netscape violates current EU competition law; I’m going to have to read and think about it, because I’ve come around to the position that it is better for competitors if OS vendors can incorporate technology like that into their OS. (People tend to forget that MS put out of business several vendors of graphical shells when they went from DOS to Windows 3.1, but no one would really argue that we shouldn’t bundle graphical shells with an OS anymore.) My current beef with them really centers around the network effects engendered by their extensions to HTML, or to other data ‘standards’ like .doc.
Tangentially, the seminar will be taught by Giuliano Amato. Any italian readers care to share anything about him that is non-standard for italian politicians and isn’t in Wikipedia? :)
12
Oct 06
plugin question for wordpress users
Is there a replacement for the wordpress dashboard (specifically the ‘incoming links’ thing) that doesn’t suck? Fully 1/2 of the links in my ‘incoming links’ list right now are the same blog, all of which are being counted because I’m in the blogroll of that blog, not the posts. Technorati appears to be indexing them over and over and over again. Blah. So surely there must be something out there which isn’t so mediocre (potentially polling multiple blog search sites and correlating their results?) and which I can just drop into wordpress? Comments and/or emails welcome.
12
Oct 06
a must-read if you listen too much to my ranting ;)
I have occasionally ranted of late about the opportunities for people to do creative things around collaboration. If you’ve listened to the rantings of an insane law student and are thinking about doing that, run, don’t walk, to Steven O’Grady’s latest post, titled ‘So you want to be an office 2.0 provider?‘ Good stuff. And don’t say I didn’t warn you ;)
[Tangentially related: apparently Google is planning to make docs.google.com run locally. A hacked-up local webservice gets around a lot of the (few remaining) shortcomings in webapps.]
12
Oct 06
really, really secure computing isn’t quite here yet
My former co-worker Ethan has been thinking out loud about the computing needs of a very specialized group of people: users in repressive nations who need to use computers very securely, so that they can’t be tracked by their governments.
Interesting post- as you’ll see in Ethan’s comments, I am pretty sure that someone, with proper time and attention to detail, could whip up a very nice ultra-secure liveCD/USB key that could really help out a lot of people. Maybe someone needs to find a Zulu word for ‘a person stays a person by evading other people’ :)
11
Oct 06
Links From The Future!!!
Say the title in a ’50s scifi voice and it gets a lot more interesting.
- The future is ‘a battle between two circles in a Venn diagram’, one of which is the ‘Net, and the other Big Content, according to Doc Searls. The cue is Google’s acquisition of YouTube, which Doc thinks is really about expanding the Big Content Venn circle, despite having the trappings of expanding the ‘Net’s circle. I agree with him, which is why this move disappoints me- that money would have been better spent (both for the ‘Net and for Google’s bottom line) if it were spent on building tools and open standards for video publishing and indexing, like Annodex.
- The future includes a Surveillance State, or so says Jack Balkin, channeled by Bill McGeveran of UMinn Law. Scary peek into the future; mostly scary because of the comparison with other States (the administrative state, for example) which snuck up on us while we weren’t looking. We’d like to tell ourselves that we’re more aware now, and we wouldn’t allow massive government sea-changes without our awareness, but I think Balkin is probably right- we would and we are allowing such a change to happen right under our noses. I look forward to seeing the whole paper.
- In the future, we’ll have Open Source Science. Maybe. Just a good link- definitely worth a read if you’re interested in collaborative models of production applying outside of software.
- In the nearer and more optimistic future, (Friday!), CC Salon is finally coming to NYC! See you there, I hope.
10
Oct 06
why DRM and our copyright system don’t play nice together
[Originally posted at First Movers. Comments should be made there.]
[Update: !@#@!#@!ing POS WP text editor.]
Disclaimer
Keep in mind that IANAL, and I’m still learning the limits of some of the things I’m talking about, so my legal claims may not be 100% accurate, though I stand behind the moral and legal intuition behind them. Also keep in mind that I’m tired, and will have no time in the near future to flesh this out to the length it deserves, so it may appear skimpy- that is not my intent, just my reality ATM. I look forward to comments on the post that might help improve, refine, or if need be correct the arguments.
With all that said, here is why I think DRM breaks our current copyright regime and as such is a problem.
The Nutshell
There are lots of facets- completely ignoring the hypothetical right to ‘share’ that many anti-DRM arguments depend on- that make up the constellation of rights and restrictions that we group together as ‘copyright’. I believe that DRM is fundamentally incompatible with several of these rights; extending some that should not be extended, and reducing others that should not be reduced.
The Rights of A Buyer of a Copyrighted Good
When you buy things, you have certain rights as a buyer. Most relevantly, since 1908 in the US, buyers of copyrighted goods have had a right to resell the good, a statutory right which has become known as the First Sale Doctrine. The basic idea comports with our intuitions about something we’ve bought- once you’ve bought something, you own it (like you own, say, your car), and can do with it basically as you please.
All current DRM (that I’m aware of) breaks this basic statutory right, as it is tied to a specific piece of hardware and does not allow the user to transfer the rights to different pieces of hardware. One could conceivably write DRM that allows resale, but it seems unlikely that this would occur unless it is statutorily mandated, since the publishing industries have been opposed to the first sale doctrine since Day One, and they dictate the design of most modern DRM.
[I personally believe that the first-sale doctrine also implies the right of users to use as they see fit before the sale- for example, moving it from one computer to another. This is a use model that is conceptually very, very difficult to fit into a DRM model without requiring people to register every computer/media player they own with a central registrar. But I really don't know anything about the rights of users to use goods once they've bought them, so I won't elaborate on this point much. Talk to me again about this one in a year :)]
The Rights of a Copyright Holder
In the US, copyrights derive from the Constitution, particularly the ‘promotion of science’ clause in Article 1. Specifically, the Constitution grants Congress the ability to create copyrights and patents ‘for limited times’. Conceptually, the Founding Fathers understood copyrights not as ‘intellectual property’ but as ‘limited monopolies’- that is, as monopolies granted by the state. While modern statutes haven’t really respected that notion, the basic intuition is sound- the state grants creators specific rights, and rights which are not granted to creators by the state should be reserved to the people in exchange for bearing the costs of a monopoly. Creators do not, and have never had, unlimited rights to do as they choose with their creations- which is something assumed by everyone who argues for ‘it is mine, so why can’t I put DRM on it?’
So, we limit the rights of copyright holders, and have since the day copyright was written into the Constitution. The first limitation, and most obvious (given the Constitution’s language) is on the length of copyrights. A DRM system that respects this right isn’t inconceivable- it would merely require that the player software phone home to a ‘trusted’ clock. But I’m pretty sure no current system does this, and depending on the existence of a remote server to get access to goods one owns when the copyright on the good expires does not seem like a wonderfully reliable mechanism for what is supposed to be a fundamental right in our system.
Much more problematic is the idea of fair use. Fair use, in a nutshell, is the idea that certain usages (educational uses, for example) cannot be prohibited by a copyright holder. There is no ‘bright line’ in fair use law- every case is decided on its own merits, which vary from situation to situation based on a number of tests. That makes deciding whether or not something is fair use very hard for judges. It also means that if you can make DRM which allows fair use, congratulations- you’ve written an AI, and you’re going to make a lot of money. In short, there is no way to write DRM which respects fair use- any copyright holder who uses effective DRM is saying ‘screw you’ to the limitations on copyright which our system has developed over the past 200 years, and replacing our legal system with technological force.
The canonical example of this last issue, in my mind, is the film teacher who wants to teach her students by showing clips from important films. Copyright law in this country makes it clear that the copyright holder cannot prevent the film teacher from editing the clips to use in her class as appropriate.
Summary
You don’t have to like file-sharing or hate Big Music to be against DRM. You just have to like the basic system of copyright law which we’ve evolved over the past 200 years- a system with fairly minimal buyer’s rights, and with fairly minimal restrictions on state-granted monopolies, and which even then is trampled on to various degrees by all existing and hypothetical DRM systems.
Future Avenues for Exploration
Once you start thinking about ‘What rights do we currently have? Would DRM take them away?’ there are a number of other issues that can be explored, which I might do in the future, but which I won’t right now. Among them:
- Opt-in DRM: In the US, the presumption is that anyone who breaks DRM is guilty of a violation. Perhaps the legal regime should be shifted, making it illegal to apply DRM which creates new defacto rights. This would allow DRM to be used in cases like trade secrets, where there is no ‘limited time’ clause or fair use, while preventing its use in situations like copyright, at least until someone invents that darn AI.
- Market forces: in the past, we’ve depended on the legal system to protect our rights. Should we depend on market forces in the future, as argued by some of those who support DRM? If we do depend on market forces to protect our rights as consumers, how does DRM impact competition (amongst DRM providers, tool providers, content providers, etc.)?
- Other forms of IP: not all forms of IP have the same sets of rights and limitations. Would it be possible to envision DRM that is compatible with the legal regime for non-copyright IP (think: trade secrets), or DRM for copyright as envisioned in other nations?
- Personal Use IP: we use copyright now in some circumstances where the item copyrighted isn’t beneficial to society in the way the founders envisioned. For example, some people copyright their pictures in part to help prevent unauthorized uses. Is it time to create a separate IP right whose motivation is personal privacy, akin more to trade secrets than copyright? If we did, would use of DRM be appropriate there?
Of course, there are also the other much-rehashed questions- how IP creators are supposed to make money without DRM, whether or not DRM is ‘just’ a form of contract (a la a EULA), and not a copyright license, etc.
[Image: a Viking padlock, via Wikipedia.]