IP: Thieves R Us

[David Farber <dave@farber.net>]

>X-Sender: >X-Sender: mnemonic@166.84.0.212
>Date: Fri, 11 May 2001 14:36:51 -0400
>To: dgillmor@sjmercury.com
>From: Mike Godwin <mnemonic@well.com>
>
>
>Thieves R Us
>Computer makers are building equipment on the assumption that we are all 
>copyright outlaws
>Mike Godwin
>The American Lawyer
>
>April 18, 2001
>
>
>Every year or two I upgrade to a newer, faster Mac laptop, and this means 
>I go through a now-familiar ritual of hooking up the new machine to the 
>old one through a cable or local area network and copying everything -- 
>software, data (including my MP3 music collection), and settings -- to the 
>new machine. So you can imagine my surprise and horror when I heard 
>reports recently that a new standard for consumer hard drives would make 
>this kind of copying difficult or maybe even impossible.
>
>The reports may have been at least partially wrong, as it turns out. But I 
>think they raise important issues, and ones we ought to be thinking about now.
>
>The notion that hard drives might be hard-wired to prevent copying first 
>collided with my consciousness in January. That's when I heard about a 
>technology known as CPRM, which stands for Content Protection for 
>Recordable Media. It's being developed by an industry group known as The 
>4C Entity, with the backing of IBM, Toshiba, and Matsushita.
>
>CPRM, it turns out, was the basis of a flood of criticism against The 4C 
>Entity after a single news story appeared in December in a British online 
>computer journal called The Register. Titled "Stealth Plan Puts Copy 
>Protection Into Every Hard Drive," the article began with an arresting 
>lead: "Hastening a rapid demise for the free copying of digital media, the 
>next generation of hard disks is likely to come with copyright protection 
>countermeasures built in." Okay, that got my attention.
>
>The article went on to say that standard-setting bodies were being asked 
>to adopt CPRM for hard disks. Each disk would have a unique identifier 
>that would help prevent unauthorized copies. The article suggested that 
>this padlock could be built into drives as early as this summer.
>
>The reaction was quick and harsh. By the next day, computer activists, 
>including millionaire software entrepreneur John Gilmore, had circulated 
>the story to mailing lists and other online forums. Gilmore called CPRM 
>"the latest tragedy of copyright mania in the computer industry." He 
>warned that under the standard, users "wouldn't be able to copy data from 
>[their] own hard drive to another drive, or back it up, without permission 
>from some third party."
>
>Industry spokesmen were quick to respond that the protesters misunderstand 
>the technology and that their concerns are overblown. The 4C Entity said 
>that CPRM isn't even designed or licensed for "generic hard disks." It is 
>instead meant for use with other digital media, such as MP3 players and 
>writeable DVDs. The group also says the technology will be optional for 
>computer manufacturers. The standard would simply specify a common digital 
>signal facilitating CPRM technology, but it would not mandate that the 
>signal be present and turned on in a device.
>These qualifications have not mollified Gilmore and other critics, who 
>raise the prospect that technologies like CPRM will push the digital 
>electronics industry into producing only equipment and tools with little 
>or no capability for unlicensed copying.
>
>Now, at this point you might say, "So what? What's wrong with designing 
>hardware in a way that prevents you from breaking the law?"
>
>I think the best answer to this is: Nothing, so long as it doesn't block 
>you from lawful stuff you need to do. Consider: It's certainly possible 
>today to build a car that will never go over the legal speed limit. 
>Perhaps speed-related injuries and fatalities are enough of a reason for 
>the auto industry to produce low-speed cars. But then it would be 
>impossible for drivers to do things they legally have a right to do, and 
>often need to do, such as accelerating safely onto a freeway or 
>accelerating to avoid a road hazard. And a car that can do those lawful 
>things can also break the speed limit. Yet we don't assume that the owner 
>of such a car is a likely speeder.
>
>Put more broadly: Technologies that empower people don't discriminate 
>between good uses and bad. So if we build constraints into our computer 
>systems that prevent infringement, we're also making it impossible for 
>users to engage in all sorts of lawful copying. Except for the most ardent 
>IP hard-liners, most people accept that it is a fair use to make private, 
>personal copies of music and movies. But the proposed standard could 
>prevent that sort of activity.
>
>It's worth comparing these digital rights management technologies to the 
>copy protection schemes that were the rage back in the 1970s and early 
>1980s -- the first decade and a half of the microcomputer revolution. Back 
>then, plenty of commercial software -- not just games, but also 
>productivity software like word processors and spreadsheets -- was coded 
>to prevent copying.
>Routine tasks like backing up a hard drive and migrating to upgraded 
>systems were an incredible chore. With backups in particular, the software 
>discouraged activities that normal, prudent computer users ought to be 
>doing. As you may remember (and certainly can imagine), this caused a lot 
>of users to gripe.
>Some developers responded by creating programs that circumvented the copy 
>protection. In the long term, however, most software vendors moved away 
>from copy protection altogether; they began to rely on copyright 
>enforcement and the customers' needs for support and upgrades to protect 
>their interests. You generally need to own licensed copies of software in 
>order to get support when you have problems.
>
>The vendors also began lowering the price of software so that it seemed 
>both reasonable and equitable to pay for it rather than copy it. The 
>primary reason that software vendors moved away from copy protection 
>schemes is that they were confronted with competitors that offered similar 
>products without copy protection and with lower prices. In other words, 
>market forces (Microsoft was not yet considered a monopoly) pushed 
>software companies into more rational setups and better relationships with 
>their customers.
>But if copy protection is built into standard computer storage devices, 
>whether hard drives or anything else, what competitors will I be able to 
>turn to? Even my Macintosh PowerBook, which you might think is free from 
>standards imposed in the Wintel world, relies on an IBM standard-issue 
>hard disk.
>
>There's another complication. The Digital Millennium Copyright Act 
>expressly outlaws the dissemination of tools that can be used to 
>circumvent technologies that control access to, or copying of, copyrighted 
>works. I can't even circumvent those technologies myself. Courts have said 
>that it's illegal even when the underlying purpose of the copying (fair 
>use for a classroom presentation or permitted by license) is lawful. Even 
>if the license of my word processor allows me to make archival copies of 
>the software, it's still illegal for me to use circumvention tools to do so.
>
>This combination of law and hardware means that there's a real possibility 
>that someday soon I won't be able to choose between computer products that 
>employ such schemes and those that don't. If that day comes, I don't know 
>how the market will respond, but I know how I will. To the extent 
>possible, I'll stop buying new computer equipment altogether. I'm guessing 
>at least some other computer buyers will make that decision, too.
>
>This will mean I won't have the fastest and best computer equipment 
>anymore, but I'm betting I can stay afloat by haunting used-computer 
>stores for a long time to come. And I'll have the pleasure of knowing that 
>the computer equipment, MP3 device, or CD burner, etc., that I'm buying 
>doesn't have built into it the assumption that I'm a copyright infringer.
>
>Mike Godwin is chief correspondent of IP Worldwide. His e-mail address is 
>>mnemonic@well.com.



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