Solveig Singleton is Making Sense

by on November 30, 2005 · 18 comments

Occasional TLF co-blogger Solveig Singleton has some very sensible comments about the pending lawsuits against Sony BMG. I largely agree with her that the actual damages of Sony’s actions are pretty small, and that these class action lawsuits are more likely to enrich lawyers than compensate consumers. I still think the lawsuits should go forward, however, especially given that Sony has yet to pull its other spyware, MediaMax, from the shelves, despite well-documented problems.

The part of her argument that I found most interesting was this paragraph:

It isn’t the technical characteristics of something alone that determine its legal treatment (whether or not we should think of it as an “attack”), it is partly the intent of the actors. Set aside the intent issue for a second and look at the tech. Is it really always clear what is a “pure” hacker tool and what is not? Isn’t it likely that in future programmers might well continue to experiment with “hacker tools” to see if they can use principles in those tools for a useful purpose? Isn’t the argument that there is such a thing as a purely useless and bad tech usually made by advocates of tech bans? Are we saying that all software always has to be easily removable and detectable? By everyone? What about security software or content filters used by parents or schools or employers? Suppose experts could find and remove it but not beginners? Suppose a DRM system was hard to find or hard to remove, but didn’t create a security vulnerability to outsiders? Or suppose it did, but was easy to find and remove? There are a million possible permutations of technology here–hard to imagine the legal system coming up with a top-down rule that makes sense for all of them, especially at this early stage of the game. Markets adapting after the fact are much more flexible.

I wholeheartedly agree. And I’m curious how Ms. Singleton would apply this reasoning to the DMCA. After all, the DMCA is a “tech ban” on a class of devices, namely “circumvention devices,” (which in practice means any devices that interoperate with DRM’ed devices without the permission of the DRM creator). It’s quite true that some “hacker tools” might be useful in software like parental controls. It’s equally true that some “circumvention tools” have legitimate uses as well. For example, as long as Hollywood refuses to create a DVD player for the Linux operating system, any software to play DVDs on Linux is by definition a “circumvention device.” Likewise, any utility to convert songs from the iTunes Music Store format directly to the Windows Media format (so they can be played on WM-based MP3 players from Dell, or Sony) is a “circumvention device.” I could give lots of other examples.

In short, the line between legitimate software and piracy tools isn’t clear-cut, and, to paraphrase Ms. Singleton, it’s hard to imagine Congress coming up with a top-down rule that makes sense for all of them. Which is why it was stupid for Congress to legislate such a rule in 1998. Markets adapting after the facts would, as she says, have been much more flexible.

So is there some distinction I’m missing? Or is Ms. Singleton a closet supporter of the DMCRA, which would repeal the “top down rule” Congress imposed on this market in 1998 and allow market actors to experiment with the potentially beneficial uses of circumvention technology?

  • http://tieguy.org/blog/ Luis Villa

    The examples given in the argument are bogus, conflating ‘easily removed by anyone’ with ‘easily removed by the administrator-owner of the machine’. Security software or content filters installed by parents or libraries are on machines owned and controlled by the parents or libraries, not by the children or users, so whether or not the children can remove the software is irrelevant. I’m almost willing to go out on a limb and say that there is no way you can come up with a legitimate example whereby an administrator/owner of a machine should be prevented from removing software from a machine they own. I suppose one could argue that one should be able to contract away that property right, but it isn’t like any of the offending programs actually offer up such a contract in any meaningful way- none of them says at install or purchase time ‘this will install stuff that might break your computer and will be impossible to remove’ in any way that can be considered a morally binding contract.

  • http://tieguy.org/blog/ Luis Villa

    The examples given in the argument are bogus, conflating ‘easily removed by anyone’ with ‘easily removed by the administrator-owner of the machine’. Security software or content filters installed by parents or libraries are on machines owned and controlled by the parents or libraries, not by the children or users, so whether or not the children can remove the software is irrelevant. I’m almost willing to go out on a limb and say that there is no way you can come up with a legitimate example whereby an administrator/owner of a machine should be prevented from removing software from a machine they own. I suppose one could argue that one should be able to contract away that property right, but it isn’t like any of the offending programs actually offer up such a contract in any meaningful way- none of them says at install or purchase time ‘this will install stuff that might break your computer and will be impossible to remove’ in any way that can be considered a morally binding contract.

  • Doug Lay

    Excellent point about the protectionist, market-distorting DMCA (more specifically, the protectionist, market-distorting anti-circumvention provision of the DMCA). Of course, I doubt the PFF folks will respond at all to this argument, or if they do, it will be something along the lines of “if you oppose the DMCA, you must hate intellectual property.” Yawn.

  • Doug Lay

    Excellent point about the protectionist, market-distorting DMCA (more specifically, the protectionist, market-distorting anti-circumvention provision of the DMCA). Of course, I doubt the PFF folks will respond at all to this argument, or if they do, it will be something along the lines of “if you oppose the DMCA, you must hate intellectual property.” Yawn.

  • http://abstractfactory.blogspot.com/ Cog

    I’ve already commented on your other thread about how the damages from Sony’s rootkit can in no way be characterized as small. Give your post above, I also want to comment that, from an economic perspective, it doesn’t matter how the damage awards from the Sony lawsuit are divided between consumers and lawyers. That’s a matter to be determined by the market in litigation services. The most important thing is that Sony (and the market) be sent a signal: you may not inflict this sort of nonconsensual externality on consumers. Sony took this action precisely because of the absence of signals such as this one, and if you fail to punish Sony and all who behave like Sony, then you’ll only see more of the same.

  • http://abstractfactory.blogspot.com/ Cog

    I’ve already commented on your other thread about how the damages from Sony’s rootkit can in no way be characterized as small. Give your post above, I also want to comment that, from an economic perspective, it doesn’t matter how the damage awards from the Sony lawsuit are divided between consumers and lawyers. That’s a matter to be determined by the market in litigation services. The most important thing is that Sony (and the market) be sent a signal: you may not inflict this sort of nonconsensual externality on consumers. Sony took this action precisely because of the absence of signals such as this one, and if you fail to punish Sony and all who behave like Sony, then you’ll only see more of the same.

  • Anonymous

    “The part of her argument that I found most interesting was this paragraph:

    It isn’t the technical characteristics of something alone that determine its legal treatment (whether or not we should think of it as an “attack”), it is partly the intent of the actors.”

    Ok–Let’s examine intent for just a little bit. It is clear the intent is to deprive people of their fair-use right. As such, I believe their intent to be essentially malicious, and I hope Sony sees multi-million dollar damages here. People DO NOT WANT DRM. IT WILL NOT BE SHOVED DOWN THEIR THROATS BY MICROSOFT AND OTHER FASCIST CORPORATIONS.

    “Set aside the intent issue for a second and look at the tech. Is it really always clear what is a “pure” hacker tool and what is not?”

    Well, first I think Ms. Singleton means “cracker” not “hacker” I would refer her to a dictionary, or perhaps the jargon file.

    “Isn’t it likely that in future programmers might well continue to experiment with “hacker tools” to see if they can use principles in those tools for a useful purpose?”
    No problem here–if those tools are licensed under the GPL though those programmers have to abide by the terms of the license under which they acquired the code–See Edward Felten’s blog FREEDOM TO TINKER” for a story about GPL code used in these DRM tools on the Sony CD’s. Hope Sony is sued by FSF soon.

    “Isn’t the argument that there is such a thing as a purely useless and bad tech usually made by advocates of tech bans?”

    Yes, but the issue of the technology and how it is implemented here are two very different things. When monopolists decide to implement a DRM scheme, as Microsoft is doing within the Vista license (just wait to see the click wrap license) it cannot be said to be consensual. So those who oppose it are not seeking a ‘tech-ban’ but to block its forced implementation.”

    “Are we saying that all software always has to be easily removable and detectable?”

    No one has the right to attempt to make any software undetectable on someone else’s system. That is what Sony did. Solvieg’s wording twists the reality. She should work for Fox News

    “By everyone? What about security software or content filters used by parents or schools or employers? Suppose experts could find and remove it but not beginners? Suppose a DRM system was hard to find or hard to remove, but didn’t create a security vulnerability to outsiders?”

    The employers or owners of the system are obviously in control. To install secret software on someone else’s system is trespass. Even if a DRM scheme was bullet proof (and I am not sure it can be made so) it is still trespass to install something that others do not want.

    Or suppose it did, but was easy to find and remove? There are a million possible permutations of technology hereÃ?¢â?‰?hard to imagine the legal system coming up with a top-down rule that makes sense for all of them, especially at this early stage of the game. Markets adapting after the fact are much more flexible.”

    No there are some very simple bright-line rules that society needs to protect itself from predatory corporations who are raping the public domain, extending copyright from a limited term to infinity and trying to roll back betamax and fair-use. How about not allowing any software to be installed unless it use and functionality are clearly explained, and any attempt to hide parts of the software from the system’s owners would be illegal.

    “I wholeheartedly agree. And I’m curious how Ms. Singleton would apply this reasoning to the DMCA. After all, the DMCA is a “tech ban” on a class of devices, namely “circumvention devices,” (which in practice means any devices that interoperate with DRMÃ?¢â?¬Ã??ed devices without the permission of the DRM creator).”

    No the DCMA goes much much further than banning devices–it is limits free speech, too. Think Edward Felten or Dmitri Skylarov.

    “It’s quite true that some “hacker tools” might be useful in software like parental controls. It’s equally true that some “circumvention tools” have legitimate uses as well. For example, as long as Hollywood refuses to create a DVD player for the Linux operating system, any software to play DVDs on Linux is by definition a “circumvention device.””

    For those interested the wonderful linux distribution ASPLinux comes with all the libraries and files needed to play DVD’s on linux preconfigured, and it works beautifully–all menus and DVD functions work great.

    “Likewise, any utility to convert songs from the iTunes Music Store format directly to the Windows Media format (so they can be played on WM-based MP3 players from Dell, or Sony) is a “circumvention device.” I could give lots of other examples.”

    Well two points:

    1. For those who believe in authentic market structure and forces such as competition bring benefits to consumers the DRM schemes are essentially attempts to create or extend monopolies (some of them, such as copyright were legally obtained, but are being extended unfairly with DRM) which will preclude society from benefiting from the effects of real competition in lowering prices.

    2. For those who care at all about freedom should be very concerned that a few large corporations are making a sustained assault on the bill of rights through actions such as as DRM DMCA and other actions.

  • Anonymous

    “The part of her argument that I found most interesting was this paragraph:

    It isn’t the technical characteristics of something alone that determine its legal treatment (whether or not we should think of it as an “attack”), it is partly the intent of the actors.”

    Ok–Let’s examine intent for just a little bit. It is clear the intent is to deprive people of their fair-use right. As such, I believe their intent to be essentially malicious, and I hope Sony sees multi-million dollar damages here. People DO NOT WANT DRM. IT WILL NOT BE SHOVED DOWN THEIR THROATS BY MICROSOFT AND OTHER FASCIST CORPORATIONS.

    “Set aside the intent issue for a second and look at the tech. Is it really always clear what is a “pure” hacker tool and what is not?”

    Well, first I think Ms. Singleton means “cracker” not “hacker” I would refer her to a dictionary, or perhaps the jargon file.

    “Isn’t it likely that in future programmers might well continue to experiment with “hacker tools” to see if they can use principles in those tools for a useful purpose?”
    No problem here–if those tools are licensed under the GPL though those programmers have to abide by the terms of the license under which they acquired the code–See Edward Felten’s blog FREEDOM TO TINKER” for a story about GPL code used in these DRM tools on the Sony CD’s. Hope Sony is sued by FSF soon.

    “Isn’t the argument that there is such a thing as a purely useless and bad tech usually made by advocates of tech bans?”

    Yes, but the issue of the technology and how it is implemented here are two very different things. When monopolists decide to implement a DRM scheme, as Microsoft is doing within the Vista license (just wait to see the click wrap license) it cannot be said to be consensual. So those who oppose it are not seeking a ‘tech-ban’ but to block its forced implementation.”

    “Are we saying that all software always has to be easily removable and detectable?”

    No one has the right to attempt to make any software undetectable on someone else’s system. That is what Sony did. Solvieg’s wording twists the reality. She should work for Fox News

    “By everyone? What about security software or content filters used by parents or schools or employers? Suppose experts could find and remove it but not beginners? Suppose a DRM system was hard to find or hard to remove, but didn’t create a security vulnerability to outsiders?”

    The employers or owners of the system are obviously in control. To install secret software on someone else’s system is trespass. Even if a DRM scheme was bullet proof (and I am not sure it can be made so) it is still trespass to install something that others do not want.

    Or suppose it did, but was easy to find and remove? There are a million possible permutations of technology hereÃ?¢â?‰?hard to imagine the legal system coming up with a top-down rule that makes sense for all of them, especially at this early stage of the game. Markets adapting after the fact are much more flexible.”

    No there are some very simple bright-line rules that society needs to protect itself from predatory corporations who are raping the public domain, extending copyright from a limited term to infinity and trying to roll back betamax and fair-use. How about not allowing any software to be installed unless it use and functionality are clearly explained, and any attempt to hide parts of the software from the system’s owners would be illegal.

    “I wholeheartedly agree. And I’m curious how Ms. Singleton would apply this reasoning to the DMCA. After all, the DMCA is a “tech ban” on a class of devices, namely “circumvention devices,” (which in practice means any devices that interoperate with DRMÃ?¢â?¬Ã??ed devices without the permission of the DRM creator).”

    No the DCMA goes much much further than banning devices–it is limits free speech, too. Think Edward Felten or Dmitri Skylarov.

    “It’s quite true that some “hacker tools” might be useful in software like parental controls. It’s equally true that some “circumvention tools” have legitimate uses as well. For example, as long as Hollywood refuses to create a DVD player for the Linux operating system, any software to play DVDs on Linux is by definition a “circumvention device.””

    For those interested the wonderful linux distribution ASPLinux comes with all the libraries and files needed to play DVD’s on linux preconfigured, and it works beautifully–all menus and DVD functions work great.

    “Likewise, any utility to convert songs from the iTunes Music Store format directly to the Windows Media format (so they can be played on WM-based MP3 players from Dell, or Sony) is a “circumvention device.” I could give lots of other examples.”

    Well two points:

    1. For those who believe in authentic market structure and forces such as competition bring benefits to consumers the DRM schemes are essentially attempts to create or extend monopolies (some of them, such as copyright were legally obtained, but are being extended unfairly with DRM) which will preclude society from benefiting from the effects of real competition in lowering prices.

    2. For those who care at all about freedom should be very concerned that a few large corporations are making a sustained assault on the bill of rights through actions such as as DRM DMCA and other actions.

  • enigma_foundry

    An important item to elaborate on, mentioned above:

    From Edward Felten’s excellent blog:

    “…It’s not surprising, then, that at least one important angle has gone nearly undiscussed in the mainstream press: the likelihood that the Sony/First4Internet XCP copy protection software itself infringes several copyrights. (Note to geeks: Slashdot doesn’t qualify as the mainstream press.)

    Matti Nikki (a.k.a. Muzzy) and Sebastian Porst have done great work unearthing evidence pointing to infringement. They claim that the code file ECDPlayerControl.ocx, which ships as part of XCP, contains code from several copyrighted programs, including LAME, id3lib, mpglib, mpg123, FAAC, and most amusingly, DVD-Jon’s DRMS.

    These are all open source programs. And of course open source is not the same as public domain. Open source programs are distributed with license agreements. If you copy and redistribute such a program, you’re a copyright infringer, unless you’re complying with the terms of the program’s license. The licenses in question are the Free Software Foundation’s GPL for mpg123 and DRMS, and the LGPL for the other programs. The terms of the GPL would require the companies to distribute the source code of XCP, which they’re certainly not doing.”

  • http://enigmafoundry.wordpress.com eee_eff

    An important item to elaborate on, mentioned above:

    From Edward Felten’s excellent blog:

    “…It’s not surprising, then, that at least one important angle has gone nearly undiscussed in the mainstream press: the likelihood that the Sony/First4Internet XCP copy protection software itself infringes several copyrights. (Note to geeks: Slashdot doesn’t qualify as the mainstream press.)

    Matti Nikki (a.k.a. Muzzy) and Sebastian Porst have done great work unearthing evidence pointing to infringement. They claim that the code file ECDPlayerControl.ocx, which ships as part of XCP, contains code from several copyrighted programs, including LAME, id3lib, mpglib, mpg123, FAAC, and most amusingly, DVD-Jon’s DRMS.

    These are all open source programs. And of course open source is not the same as public domain. Open source programs are distributed with license agreements. If you copy and redistribute such a program, you’re a copyright infringer, unless you’re complying with the terms of the program’s license. The licenses in question are the Free Software Foundation’s GPL for mpg123 and DRMS, and the LGPL for the other programs. The terms of the GPL would require the companies to distribute the source code of XCP, which they’re certainly not doing.”

  • Solveig Singleton

    Hi guys. Just time for quick answers to some of the above:

    1) I used the term “hacker” rather than “cracker” because “hacker” was the term used in the blindmindseye post. I’m aware of the difference.

    2) Re the DMCA: Yes, some of the arguments above apply to the DMCA as well (indeed that was what I was obliquely referencing when I referred to tech bans). The argument with respect to the DMCA would be somewhat different, however. There one of the issues is whether a legal rule of some kind is needed for more basic ground rules about content to be enforceable. If the answer is yes, it is needed, then the question becomes whether any proposed exceptions (including some of those that turn on intent) swallow the rule. I think it is a harder problem than any offending DRM. Indeed I think it is a very hard problem.

    2) The question of how damages are distributed between customers and lawyers in class action suits, is, I am afraid, very much *not* a result of the market, but of the Federal Rules of Civil Procedure; these were, in fact, deliberately designed to *alter* the outcome of the market, which would simply not support the kinds of suits that we see here.

    That’s all for now.

  • Solveig Singleton

    Hi guys. Just time for quick answers to some of the above:

    1) I used the term “hacker” rather than “cracker” because “hacker” was the term used in the blindmindseye post. I’m aware of the difference.

    2) Re the DMCA: Yes, some of the arguments above apply to the DMCA as well (indeed that was what I was obliquely referencing when I referred to tech bans). The argument with respect to the DMCA would be somewhat different, however. There one of the issues is whether a legal rule of some kind is needed for more basic ground rules about content to be enforceable. If the answer is yes, it is needed, then the question becomes whether any proposed exceptions (including some of those that turn on intent) swallow the rule. I think it is a harder problem than any offending DRM. Indeed I think it is a very hard problem.

    2) The question of how damages are distributed between customers and lawyers in class action suits, is, I am afraid, very much *not* a result of the market, but of the Federal Rules of Civil Procedure; these were, in fact, deliberately designed to *alter* the outcome of the market, which would simply not support the kinds of suits that we see here.

    That’s all for now.

  • http://www.binarybits.org/ Tim

    Ms. Singleton,

    In my opinion, the DMCA is neither necessary nor helpful to enforcing creators’ rights under copyright law. In fact, I’m working on a Cato Policy Analysis making precisely that case. It will be out early next year, and I’ll be sure to send you a copy.

  • http://www.binarybits.org/ Tim

    Ms. Singleton,

    In my opinion, the DMCA is neither necessary nor helpful to enforcing creators’ rights under copyright law. In fact, I’m working on a Cato Policy Analysis making precisely that case. It will be out early next year, and I’ll be sure to send you a copy.

  • http://www.commonsmusic.com/blog Commons Music

    Tim, would you mind sending it to me as well? E-mail is contact@_commonsmusic.com

    I’m very interested in a Cato paper like that, particularly because Cato has, in past releases, been very up on DMCA and DRM (such as with the Einhorn and Rosenblatt paper on DRM and P2P, although I can’t recall if the DMCA was mentioned specifically in there).

    Thanks.

  • http://www.commonsmusic.com/blog Commons Music

    Tim, would you mind sending it to me as well? E-mail is contact@_commonsmusic.com

    I’m very interested in a Cato paper like that, particularly because Cato has, in past releases, been very up on DMCA and DRM (such as with the Einhorn and Rosenblatt paper on DRM and P2P, although I can’t recall if the DMCA was mentioned specifically in there).

    Thanks.

  • enigma_foundry

    “1) I used the term “hacker” rather than “cracker” because “hacker” was the term used in the blindmindseye post. I’m aware of the difference.”

    Well, then you should have corrected their mis-use of the term. Re-read 1984 and study the parts which talk about the corruption of language.

    “2) Re the DMCA: Yes, some of the arguments above apply to the DMCA as well (indeed that was what I was obliquely referencing when I referred to tech bans). The argument with respect to the DMCA would be somewhat different, however. There one of the issues is whether a legal rule of some kind is needed for more basic ground rules about content to be enforceable. If the answer is yes, it is needed, then the question becomes whether any proposed exceptions (including some of those that turn on intent) swallow the rule. I think it is a harder problem than any offending DRM. Indeed I think it is a very hard problem.”

    All of these very hard problems are created by the DMCA, and attempts to make an unjust, repressive law fit in to a legal system which has a history of rejecting such laws. The simplest and most logically consistent thing to do is to realize the DMCA itself is wrongly conceived, in terms of balancing property rights against First Amendment rights.

    “2) The question of how damages are distributed between customers and lawyers in class action suits, is, I am afraid, very much *not* a result of the market, but of the Federal Rules of Civil Procedure; these were, in fact, deliberately designed to *alter* the outcome of the market, which would simply not support the kinds of suits that we see here.”

    Markets are created by the actions of man, and that includes legal actions, such as The Federal Rules of Civil Procedure. These rules create a market for legal services to benefit society, by providing those who would be without a voice in the legal arena with a voice.

    I could just as well say that the creation of the USPTO *altered* the market, which would not support the types of Monopolies we see today. (e.g.: Microsoft.)

    In summation, Solveig responds only to some criticisms, but is unable or (unwilling to recognize) the inherent problems with the sustained assault on the Bill of Rights being waged by corporations, and in particular the line that because a corporation had the intent of maintaining their profits, their illegal actions could be held to a lower legal standard than if a cracker was trying to steal my credit card, say.

    I find this repulsive, and just another of the several hundred ways in which we are surrendering our rights to corporations, and granting them special legal protections and rights.

    It time for a little balance here, and individuals such as Edward Felten, Dmitri Skylarov, and every linux user are being repressed by corporations who are seeking to destroy our freedoms. Is there any concern that this is some how wrong?

  • http://enigmafoundry.wordpress.com eee_eff

    “1) I used the term “hacker” rather than “cracker” because “hacker” was the term used in the blindmindseye post. I’m aware of the difference.”

    Well, then you should have corrected their mis-use of the term. Re-read 1984 and study the parts which talk about the corruption of language.

    “2) Re the DMCA: Yes, some of the arguments above apply to the DMCA as well (indeed that was what I was obliquely referencing when I referred to tech bans). The argument with respect to the DMCA would be somewhat different, however. There one of the issues is whether a legal rule of some kind is needed for more basic ground rules about content to be enforceable. If the answer is yes, it is needed, then the question becomes whether any proposed exceptions (including some of those that turn on intent) swallow the rule. I think it is a harder problem than any offending DRM. Indeed I think it is a very hard problem.”

    All of these very hard problems are created by the DMCA, and attempts to make an unjust, repressive law fit in to a legal system which has a history of rejecting such laws. The simplest and most logically consistent thing to do is to realize the DMCA itself is wrongly conceived, in terms of balancing property rights against First Amendment rights.

    “2) The question of how damages are distributed between customers and lawyers in class action suits, is, I am afraid, very much *not* a result of the market, but of the Federal Rules of Civil Procedure; these were, in fact, deliberately designed to *alter* the outcome of the market, which would simply not support the kinds of suits that we see here.”

    Markets are created by the actions of man, and that includes legal actions, such as The Federal Rules of Civil Procedure. These rules create a market for legal services to benefit society, by providing those who would be without a voice in the legal arena with a voice.

    I could just as well say that the creation of the USPTO *altered* the market, which would not support the types of Monopolies we see today. (e.g.: Microsoft.)

    In summation, Solveig responds only to some criticisms, but is unable or (unwilling to recognize) the inherent problems with the sustained assault on the Bill of Rights being waged by corporations, and in particular the line that because a corporation had the intent of maintaining their profits, their illegal actions could be held to a lower legal standard than if a cracker was trying to steal my credit card, say.

    I find this repulsive, and just another of the several hundred ways in which we are surrendering our rights to corporations, and granting them special legal protections and rights.

    It time for a little balance here, and individuals such as Edward Felten, Dmitri Skylarov, and every linux user are being repressed by corporations who are seeking to destroy our freedoms. Is there any concern that this is some how wrong?

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