IP: more on 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>]

>
>Date: Mon, 25 Dec 2000 15:32:17 -0800
>To: "Jonathan S. Shapiro" <shap@eros-os.org>
>From: "Mark S. Miller" <markm@caplet.com>
>Subject: Re: Thought crimes
>Cc: <farber@cis.upenn.edu>, <ip-sub-1@majordomo.pobox.com>, <fsb@crynwr.com>,
>    "Marc Stiegler" <marcs@skyhunter.com>
>
>At 09:07 AM Monday 12/25/00, Jonathan S. Shapiro wrote:
> >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.
>
>
>Because the descriptive and the normative -- "is" and "ought" -- are so
>rarely separated, I need to make it clear that, if I could wave a magic wand
>and have copyright, narrowly interpreted, continue to be enforceable in ways
>that serve both of these purposes, I would.  This note explains why I don't
>think there is such a magic wand.  I am not against copyright.  I am just
>against tilting at windmills.
>
>
>Jonathan's paragraph above assumes that copy protection is possible, and
>that it is possible for these disks (or other means) to succeed at their
>purpose.  For most of the media people are trying to protect, which we call
>"self revealing media", this is simply false.  Books, movies, music, and
>such are all self revealing media -- the only way their information content
>delivers value to the customer is by revealing this information to the
>customer.  Unless someone knows of a way from the player to distinguish an
>eyeball from a camera, then all hope is lost.  (Assume attempts to recognize
>this difference would result in cameras embedded in eyeballs.)  So if these
>disk drives and the hype surrounding them lull content owners into thinking
>that purpose #1 will be served, purpose #2 will instead be served in hours
>or days rather than years.  Of course, after enough iterations of this,
>content owners will wise up or die.
>
>See "The Street Performer Protocol and Digital Copyrights" by John Kelsey
>and Bruce Schneier http://www.firstmonday.dk/issues/issue4_6/kelsey/ for
>more on why such copy protection is impossible, as well some ideas for
>addressing issue number #1 in the face of this.
>
>By contrast, programs and processes are examples of the other important
>media category, "behavioral media".  Behavioral media delivers value to the
>customer by interacting with the customer.  Each time, the interaction's
>value derives from the value of the information which is the media's
>content, but the information revealed by the interaction is generally not
>adequate to reverse engineer the media's content.  For example, if you play
>chess or a video game, or use a symbolic algebra package, and you record all
>the information passing between you and the program with full fidelity, this
>doesn't help much in recreating the program itself.
>
>Of course, you can proxy interactions from others to the program itself --
>be a man in the middle -- but if the program charges per-use and not
>per-copy, then the program owner's revenue isn't in the least threatened.
>This model, and how to accomplish it securely is explained at
>http://www.agorics.com/agoricpapers/aos/aos.6.html .  (Although I've said
>publicly that I no longer advocate opaque boxes, my advocacy and preferences
>are besides the point of this note.  Here we need to understand only
>technological possibility and inevitability.)  For this kind of media,
>protected through these measures, there's no way to ensure purpose #2: The
>content is protected through an analog of trade-secret rather than copyright
>or patent.  There is no means to enforce the eventual revelation of this
>content to the public.
>
>The irony of the above contrast is that while the purveyors of the
>protectable kind of media, the software industry, has made enormous strides
>in learning to live post-copyright, in the exploration of open source
>business models, the industries on whose neck the axe is rapidly falling
>know of nothing to do but panic.  As they see no alternative to defending
>copyright, and as they are sitting on many many billions of dollars of
>accounting value in copyrighted works, it seems the only ethical thing they
>can do to serve the interests of their stockholders is to spend billions on
>anyone, like InterTrust or IBM's funny disks, that promise the hope of
>throwing some friction in the path of the inevitable.  They may even be
>right -- the delay bought by this friction may actually be worth the money
>spent on it.  For now.
>
>At some point, when billions of dollars only buys additional hours of
>friction, they will need to start thinking about non-copyright-based
>business models, perhaps along the lines of Street Performer, or perhaps
>along the of the open source models the software industry is pursuing.  In
>the meantime, the money being spent on the impossible has diverted and
>distracted a huge amount of computer security professionals from pursuit of
>the achievable.
>
>Fortunately, it is possible to divide up the "Digital Rights Management"
>(DRM) issue into two parts, the achievable and the impossible.  The sinking
>dinosaurs, by funding the creation of DRM systems, also effectively fund the
>parts of the technology that will be useful in other contexts.  If people
>are interested, I can explain a way to partition DRM to achieve this.
>The "dinosaur" reference isn't a value judgement -- I also feel sorry for
>those dinosaurs.  But though the dinosaurs died, during the transition their
>rotting flesh may have helped feed the early mammals.  (Actually, I have no
>idea.  But it is a vivid image.)
>
>
> >The content manufacturers and the disk drive makers are formulating a new
> >contract with the viewing public.
>
>This is indeed a Smart Contract, in the sense that Nick Szabo and the E
>project use the term -- it's a contract "written" in the behavior of an
>automated enforcement mechanism.  However, a key component of contracts is
>enforceability.  Only once we understand what terms are enforceable in this
>new medium will we understand what kinds of contract we can successfully 
>write.
>
>
> >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.
>
>To address this, we must first resolve a terminological ambiguity: Would you
>say that technologically enforced copy protection is really just "copyright"
>in a new medium, or is it "other means"?  If content owners only engage in
>technological means without legacy-legal backing, are they "claiming the
>benefits of copyright" or giving up on those benefits?
>
>Given the trans-jurisdictional nature of the Internet and the identity
>hiding power of crypto and mix-networks, when the law goes against the logic
>of technological enforceability, it will still be able to prohibit, but no
>longer to inhibit.
>
>
>         Cheers,
>         --MarkM



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