points of action

An enlightening dialog with John Gilmore of the EFF (Electronic Frontier Foundation) about the problems of content protection that shines hope of a new future.


I think it would be illuminating to hear your views on the differences between the Intel/IBM content-protection proposals and existing practices for content protection in the TV scrambling domain.  The devil’s advocate position against
your position would be: if the customer is willing to buy extra, or special, hardware to allow him to view protected content, what is wrong with that?
-Ron Rivest

There is nothing wrong with allowing people to optionally choose to buy
copy-protection products that they like.

What is wrong is when people who would like products that simply record bits,
or audio, or video, without any copy protection, can’t find any, because
they have been driven off the market.  By restrictive laws like the
Audio Home Recording Act, which killed the DAT market.  By
“anti-circumvention” laws like the Digital Millennium Copyright Act, which
EFF is now litigating.  By Federal agency actions, like the FCC deciding
a month ago that it will be illegal to offer citizens the capability to record
HDTV programs, even if the citizens have the legal right to.  By private
agreements among major companies, such as SDMI and CPRM (that later end up
being “submitted” as fait accompli to accredited standards committees,
requiring an effort by the affected public to derail them).  By private
agreements behind the laws and standards, such as the unwritten agreement
that DAT and MiniDisc recorders will treat analog inputs as if they contained
copyrighted materials which the user has no rights in.  (My recording
of my brother’s wedding is uncopyable, because my MiniDisc decks act as if
I and my brother don’t own the copyright on it.)

Pioneer New Media Technologies, who builds the recently announced recordable
DVD drive for Apple, says “The major consumer applications for recordable
DVD will be home movie editing and storage and digital photo storage”. 
They carefully don’t say “time-shifting TV programs, or recording streaming
Internet videos”, because the manufacturers and the distribution companies
are in cahoots to make sure that that capability NEVER REACHES THE MARKET. 
Even though it’s 100% legal to do so, under the Supreme Court’s _Betamax_
decision.  Streambox built software that let people record RealVideo
streams on their hard disks; they were sued by Real under the DMCA, and took
it off the market. According to Nomura Securities, DVD Recorder sales will
exceed VCR sales in 2004 or 2005, and also exceed DVD Player-only sales by
2005.
(http://www.kipinet.com/tdb/1000/10tdb04.htm) 
So by 2010 or so, few consumers will have access to a recorder that will
let them save a copy of a TV program, or time-shift one, or let the kids
watch it in the back of the car.  Is anyone commenting on that social
paradigm shift?  Do we think it’s good or bad?  Do we get any say
about it at all?

Instead, consumers will have to pay movie/TV companies over and over for
the privilege of time-shifting or space-shifting.  Even if they have
purchased the movie, and it’s stored at home on their own eqiupment, and
they have high bandwidth access to it from wherever they are.  This
concept is called “pay per use”.  It can’t compete with “You have the
right to record a copy of what you have the right to see”.  These companies
can’t eliminate that right legally, because it would violate too many of
the fundamentals of our society, so they are restricting the technology so
you can’t EXERCISE that right.  In the process they ARE violating the
fundamentals on which a stable and just society is based.  But as long
as society survives until after they’re dead, they don’t seem to care about
its long-term stability.

What is wrong is when companies who make copy-protecting products don’t disclose
the restrictions to the consumers.  Like Apple’s recent happy-happy
web pages on their new DVD-writing drive, announced this month
(http://www.apple.com/idvd/). 
It’s full of glowing info about how you can write DVDs based on your own
DV movie recordings, etc. What it quietly neglects to say is that you can’t
use it to copy or time-shift or record any audio or video copyrighted by
major companies.  Even if you have the legal right to do so, the technology
will prevent you.  They don’t say that you can’t use it to mix and match
video tracks from various artists, the way your CD burner will. It doesn’t
say that you can’t copy-protect your OWN disks that it burns; that’s a right
the big manufacturers have reserved to themselves.  They’re not selling
you a DVD-Authoring drive, which is for “professional use only”.  They’re
selling you a DVD-General drive, which cannot record the key-blocks needed
to copy-protect your OWN recordings, nor can a DVD-General disc be used as
a master to press your own DVDs in quantity.  These distinctions are
not even glossed over; they are simply ignored, not mentioned, invisible
until after you buy the product.

It isn’t just Apple who is misleading the consumer; it’s epidemic. Sony portable
mini-disc recorders only come with digital INPUT jacks, never digital
OUTPUTS.  Sound checks in — but only checks out in low-quality analog
formats.  Intel touts the wonders of their TCPA (Trusted Computing Platform
Architecture).  You have to read between the lines to discover that
it exists solely to spy on how you use your PC, so that any random third
party across the Internet can decide whether to “trust” you — the owner. 
TCPA isn’t about reporting to YOU whether you can trust your own PC (e.g.
whether it has a virus), it doesn’t include that function.  It exists
to report to record companies about whether you have installed any software
that lets you make copies of MP3s, or any free software to circumvent whatever
feeble copy-protection system the record company uses.  Intel is pushing
HDCP (High Definition Content Protection) which is high speed hardware encryption
that runs only on the cable between the computer and its CRT or LCD
monitor.  The only signal being encrypted is the one that the user is
sitting there watching, so why is it encrypted? So that the user can’t record
what they can view!  If the cable is tampered with, the video chip degrades
the signal to “analog VCR quality”.

Intel is also pushing SDMI and CPRM (Content Protection for Recordable Media)
which would turn your own storage media (disk drives, flash ram, zip disks,
etc) into co-conspirators with movie and record companies, to deny you (the
owner of the computer and the media) the ability to store things on those
media and get them back later. Instead some of the stored items would only
come back with restrictions wired into the extraction software — restrictions
that are not under the control of the equipment owner, or of the law, but
are matters of contract between the movie/record companies and the
equipment/software makers.  Such as, “you can’t record copyrighted music
on unencrypted media”.  If you try to record a song off the FM radio
onto a CPRM audio recorder, it will refuse to record or play it, because
it’s watermarked but not encrypted.  Even when recording your own brand-new
original audio, the default settings for analog recordings are that they
can never be copied, nor ever copied in higher fidelity than CD’s, and that
only one copy can be made even if copying is ever authorized (if the other
restrictions are somehow bypassed).  Intel and IBM don’t tell you these
things; you have to get to Page 11 of Exhibit B-1, “CPPM Compliance Rules
for DVD-Audio” on page 45 of the 70-page “Interim CPRM/CPPM Adopters Agreement”,
available only after you fill out intrusive personal questions after following
the link from
http://www.dvdcca.org/4centity/
.  All Intel tells you that CPPM will “give consumers access to more
music”
(http://www.intel.com/pressroom/archive/releases/aw032300.htm). 
Lying to your customers to mislead them into buying your products is wrong.

What is wrong is when scientific researchers are unable to study the field
or to publish their findings.  Professor Ed Felten of Princeton studied
the SDMI “watermarking” systems in some detail, as part of a public study
deliberately permitted by the secretive SDMI committee, so they could determine
whether the public could crack their chosen schemes.  (SDMI would not
allow EFF to join its deliberations, saying that we had no legitimate interest
in the proceedings because we weren’t a music company or a manufacturer. 
There are no consumer or civil rights representatives in the SDMI
consortium.)  Prof. Felten was in the New York Times last week,
saying the SDMI people and Princeton’s lawyers are now telling him that he
can’t release his promised details on what was wrong with these watermarking
systems, because of the Digital Millennium Copyright Act.  It’s OK to
tell the SDMI companies how easy it is to break their scheme, but it isn’t
OK to tell the public or other scientific researchers.

What is wrong is when competitors are unable to build competing devices or
software, vying for the favor of the consumers in the free market. 
Instead those devices are banned or threatened, and that software is censored
and driven underground.  Such as the open-source DeCSS and LiViD DVD
player programs.  Such as DVD players worldwide that can play American
“Region 1” DVDs.  EFF spent more than a million dollars last year in
defending the publisher of a security magazine, and a Norwegian teenager,
from movie industry attempts to have them censored and jailed, respectively,
for publishing and writing competing software that lets DVDs be played or
copied but does not follow the restrictive contracts that the movie studios
imposed on most players.  The movie studios spent $4 million on prosecuting
the New York case alone.  Few or no manufacturers are willing to put
ordinary digital audio recorders on the market — you see lots of MP3
players but where are the stereo MP3 recorders?  They’ve
been chilled into nonexistence by the threat of lawsuits.  The ones
that claim to record, record only “voice quality monaural”.

What is wrong is when the controls that are enacted to protect the rights
reserved under copyright are used for other purposes.  Not to protect
the existing rights, but to create new rights at the whim of the copyright
holder.  Movie companies insisted on a “region coding” system for DVDs,
because they would make less money if DVD movies were actually tradeable
worldwide under existing free-trade laws.  (They couldn’t charge high
theatre ticket prices if the same movie was simultaneously available on DVDs,
and they couldn’t combine the ad campaigns of the theatres and the DVDs if
they waited a long time between releasing it to theatres and releasing it
to DVDs.)  This system results in the situation where a consumer can
buy a DVD player legally, buy a DVD legally, and put the two together, and
the movie won’t play.  The user has every legal right to view the movie,
but it won’t play, because if it did, movie companies might make less money.
Similar controls exist in DVDs to prevent people from fast-forwarding past
the ads or those nonsensical “FBI Warnings”.

Microsoft built some deliberately incompatible protocols into Windows 2000
so that competing Unix machines could not be used as DNS servers in some
circumstances.  Microsoft released a specification but only under an
encrypted file format that claimed to require that readers agree not to use
the information to compete with them.  When someone decrypted the trivial
encryption WITHOUT agreeing to the terms, Microsoft threatened to use the
DMCA to sue Slashdot, the popular free-software news web site, who published
the results.  (Luckily for us, Slashdot has a backbone and said “go
ahead, we’ll defend that suit” and Microsoft chickened out.)  Copyright
doesn’t grant the right to prevent competition, or to restrict global trade
— but somehow the legislation that was enacted to protect copyrights is
being used to do just those things.

What is wrong is when social policy is created in smoke-filled back rooms,
between movie/record company executives and computer company executives,
not by open public discussion, by legislatures, and by courts.  The
CPRM specification, for example, allows a distributor of a bag of bits (who
has access to software with this capability) to decide that future recipients
will not be permitted to make copies of that bag of bits.  Or that two
copies are permitted, but not three. This policy is not legally enforceable,
it was not created by law. The law says something different.  But the
policy will be enforced by equipment built by all the major manufacturers,
because they will be sued by the movie/record companies if they dare to build
interoperating equipment that lets consumers make THREE copies, or copies
limited only by their legal rights.  Is it unexpected that such back-room
policies end up favoring the parties who were in the room, at the expense
of consumers and the public?

What is wrong is when the balance between the rights of creators and the
rights of freedom of speech and the press is lost.  Because any increase
in the rights of creators is a DECREASE in the public’s right of free speech
and publication.  Whenever copyrights are extended, the public domain
shrinks.  The right of criticism, the right to dispute someone else’s
rendition of the truth, is damaged.  The First Amendment gives an almost
absolute right to publish; the Copyright clause gives a limited right to
prevent publication by others.  Any expansion of the right to prevent
publication diminishes the right to publish.  For example, nothing that
was created after 1910 has entered the public domain, because as the years
went by, the term of copyright kept getting extended.  But the copy-rights
created by technological restrictions are not even designed to end. 
There is nothing in the SDMI or CPRM spec that says, “After 2100 you will
be permitted to copy the movies from 1910”. 

What is wrong is that a tiny tail of “copyright protection” is wagging the
big dog of communications among humans.  As Andy Odlyzko pointed out,
(http://www.research.att.com/~amo/doc/eworld.html,
see “Content is not king” and “The history of communications and its implications
for the Internet”), “The annual movie theater ticket sales in the U.S. are
well under $10 billion.  The telephone industry collects that much money
every two weeks!”  Distorting the law and the technology of human
communication and computing, in order to protect the interests of copyright
holders, makes the world poorer overall.  Even if it didn’t violate
fundamental policies for the long-term stability of societies, it would be
the wrong economic decision.

What is wrong is that we have invented the technology to eliminate scarcity,
but we are deliberately throwing it away to benefit those who profit from
scarcity.  We now have the means to duplicate any kind of information
that can be compactly represented in digital media.  We can replicate
it worldwide, to billions of people, for very low costs, affordable by
individuals.  We are working hard on technologies that will permit other
sorts of resources to be duplicated this easily, including arbitrary physical
objects (“nanotechnology”; see
http://www.foresight.org).  The
progress of science, technology, and free markets have produced an end to
many kinds of scarcity.  A hundred years ago, more than 99% of Americans
were still using outhouses, and one out of every ten children died in
infancy.  Now even the poorest Americans have cars, television, telephones,
heat, clean water, sanitary sewers — things that the richest millionaires
of 1900 could not buy.  These technologies promise an end to physical
want in the near future.

We should be rejoicing in mutually creating a heaven on earth! Instead, those
crabbed souls who make their living from perpetuating scarcity are sneaking
around, convincing co-conspirators to chain our cheap duplication technology
so that it WON’T make copies — at least not of the kind of goods THEY want
to sell us.  This is the worst sort of economic protectionism — beggaring
your own society for the benefit of an inefficient local industry. 
The record and movie distribution companies are careful not to point this
out to us, but that is what is happening.

If by 2030 we have invented a matter duplicator that’s as cheap as copying
a CD today, will we outlaw it and drive it underground?  So that farmers
can make a living keeping food expensive, so that furniture makers can make
a living preventing people from having beds and chairs that would cost a
dollar to duplicate, so that builders won’t be reduced to poverty because
a comfortable house can be duplicated for a few hundred dollars?  Yes,
such developments would cause economic dislocations for sure.  But should
we drive them underground and keep the world impoverished to save these peoples’
jobs?  And would they really stay underground, or would the natural
advantages of the technology cause the “underground” to rapidly overtake
the rest of society?

I think we should embrace the era of plenty and work out how to mutually
live in it.  I think we should work on understanding how people can
make a living by creating new things and providing services, rather than
by restricting the duplication of existing things.  That’s what I’ve
personally spent ten years doing, founding a successful free software support
company.  That company, Cygnus Solutions, annually invests more than
$10 million into writing software, giving it away freely, and letting anyone
modify or duplicate it.  It funds that by collecting more than $25 million
from customers, who benefit from having that software exist and be reliable
and widespread.  The company is now part of Red Hat, Inc — which also
makes its living by empowering its customers without restricting the duplication
of its work.  It’s no coincidence that the open source, free software,
and Linux communities are among the first to become alarmed at copy
protection.  They are actively making their livings or hobbies out of
eliminating scarcity and increasing freedom in the operating system and
application software markets.  They see the real improvement in the
world that results — and the ugly reactions of the monopolistic and
oligopolistic forces that such efforts obsolete.

Converting the whole world to operate without scarcity is a huge task. Such
a large economic shift would take decades to spread through the entire world
economy, making billions of new winners and new losers. We will be extremely
lucky if by 2030 we are prepared to end scarcity without massive social
turmoil, including riots, civil unrest, and world war.  If we are to
find a peaceful path to an era of plenty, we should be starting HERE AND
NOW, transforming the industries we have already eliminated scarcity in —
text, audio, and video.  Companies that can’t adjust should disappear
and be replaced by those who can.  As these whole industries learn how
to exist and thrive without creating artificial scarcity, they will provide
models and expertise for other industries, which will need to change when
their own inefficient production is replaced by efficient duplication ten
or fifteen years from now.  Relying on copy-protection now would send
us in exactly the wrong direction!  Copy protection pretends that the
law and some fancy footwork with industrial cartels can maintain our current
economic structures, in the face of a hurricane of positive technological
change that is picking them up and sending them whirling like so many autumn
leaves.

This may be a longer discussion than you wanted, Ron, but as you can see,
I think there are a lot of things wrong with how copy protection techologies
are being foisted on an unsuspecting public.  I’d like to hear from
you a similar discussion.  Being devil’s advocate for a moment, why
should self-interested companies be permitted to shift the balance of fundamental
liberties, risking free expression, free markets, scientific progress, consumer
rights, societal stability, and the end of physical and informational
want?  Because somebody might be able to steal a song?  That seems
a rather flimsy excuse.  I await your response.

John Gilmore

Electronic Frontier Foundation

Author: John Gilmore

News Service: cryptome.org

URL: http://cryptome.org/jg-wwwcp.htm