IP: Re: Thought crimes or better the joint plans of disk drive manufacturers and content providers to provide copy protection based on cryptographic means embedded within the drive technology

[Dave Farber <farber@cis.upenn.edu>]

>From: "Jonathan S. Shapiro" <shap@eros-os.org>
>To: <farber@cis.upenn.edu>, <ip-sub-1@majordomo.pobox.com>
>Date: Mon, 25 Dec 2000 12:07:31 -0500
>
>[Others: this note is in response to a discussion about the joint plans of
>disk drive manufacturers and content providers to provide copy protection
>based on cryptographic means embedded within the drive technology. The
>subject line is not of my choosing.]
>
>I think there is a great public confusion about what copyright means, and
>that the entire debate about the dangers of cryptographic disk drives is
>missing something important.
>
>Copyright has two purposes: (1) to allow an author to gain compensation for
>a work, and (2) to ensure that after an appropriate amount of time the work
>becomes public domain. As we think about the implications of cryptographic
>disk drives, it is important to remember that these technologies only
>address *half* of copyright. They allow a distributor to ensure that a
>copyrighted work is more difficult to steal. Unfortunately, by their very
>success, they ensure that the work will never be released as a public good.
>Cryptographic disk drives do not preserve copyright. They enforce something
>much much stronger.
>
>The content manufacturers and the disk drive makers are formulating a new
>contract with the viewing public. This contract does not protect the
>interests and rights of the public as copyright does, because it does not
>allow the content to be transferred into the public domain at the expiration
>of the copyright period. If the content providers have concluded that
>copyright provides inadequate protection, they are certainly free to devise
>other means. However, they should not be simultaneously entitled to claim
>the benefit of copyright for their works.
>
>It is ironic to note that the manufacturers and the content providers have
>conspired to turn the history of copyright back almost five hundred years.
>Copyright traces its origin in English law to the charter of the Stationers
>Company in 1556. It came into law for the purposes of allowing the crown to
>suppress heresy and sedition by concentrating printing presses among a small
>number of businesses that could be threatened and coerced by the crown. The
>grant allows the Stationers to search out and destroy competing printing
>presses (literally to burn them to the ground) outside of other legal
>processes. This monopoly was strengthened "for the repressinge of suche
>greate enormyties and abuses as of late" by Queen Elizabeth in 1586 in the
>Decrees of the Starre Chamber. These repressive laws remained in force until
>the expiration of the censorship laws in 1694.
>
>The model for modern copyright law was the Copyright Act of 1709, 8 Ann. c.
>19), which was fundamentally an anti-monopoly law. Modern copyright is based
>on *preventing* monopolies of exactly the kind that the content
>manufacturers are trying to establish.
>
>It is interesting to note that this occurs as software vendors are working
>to build similar monopolies in the form of software patent. In the area of
>software patents, the conflict between the rights of the public and the
>profits of the corporation is particularly painful and clear. There is no
>conceivable justification for a 20 year protection period in an industry
>whose product lifecycles are less than two years. In this arena, more than
>in any other, the introduction of patent robs the public of the ability to
>innovate in a timely fashion.
>
>Both debates have neglected a crucial and important point: the rights of the
>public.
>
>Patent and copyright as we know them today do not exist to protect the
>profits or the interests of corporations. This is commonly forgotten when
>people argue the merits. I hear people argue "company X has a *right* to
>make a reasonable profit on their inventions." Similarly, we are hearing
>that "company Y has a *right* to make a profit on their video, recording, or
>what have you. These are reasonable arguments, but they have very little to
>do with copyright or patent.
>
>The purpose of copyright and patent is to ensure that the protected
>intellectual property becomes a public good within some reasonably short
>period of time.
>
>Perhaps, before we agree too readily that either change is reasonable, we
>should stop to examine the history of repression and bloodshed that has
>surrounded similarly repressive laws in the past.
>
>You'll need a strong stomache. It isn't pretty.
>
>
>Jonathan S. Shapiro, Ph.D.
>Johns Hopkins University



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