The Law Is an Ass

by on May 5, 2007 · 50 comments

Mark Blafkin has an puzzling take on this week’s Digg/AACS business:

The real story here is about the ephemeral nature of Web2.0 companies. When your value is based on the people you attract more than the value of any product or service you provide, your grasp on success is tenuous at best. You will always be at the mercy of 5-10 percent of your users that are most active and usually most crazy. Web2.0 has a lot of promise, but it also has some potential pitfalls. We’ve just seen one of them. When you’re relying on “mobs,” well, you’re relying on MOBS.

I’m at a loss what point Blafkin’s trying to make here. Let’s keep in mind that a “Web 2.0 business” is just a website whose contents are controlled by users rather than the site administrator. Or in other words, it’s a website that gives users the freedom to exchange information without having to first seek the permission of the authorities. As a libertarian, that seems to me as an almost unalloyed good.

If the DMCA effectively says that Digg had to choose between breaking the law or shutting down, that seems to me like evidence that there’s something wrong with the DMCA. Digg is not profiting from piracy the way Napster and Grokster were. They’re a legitimate news site whose users happen to have strong anti-censorship views.

Blafkin seems to have the opposite reaction: that if user-generated content is incompatible with the DMCA, then so much the worse for user-generated content. But libertarianism is not about slavishly obeying the law, regardless of the consequences. If copyright law starts effectively outlawing legitimate websites, then copyright law has gone too far.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Copyright law is based upon suspending the liberty of the public for the benefit of its commercial exploitation by publishers.

    Are you suggesting that the public’s liberty is more important than the economic viability of publishers???!

    Plainly it isn’t. The public must be manacled, gagged, and sedated so that the publishers can give the public what they truly want. If only they’d just stop struggling…

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Copyright law is based upon suspending the liberty of the public for the benefit of its commercial exploitation by publishers.

    Are you suggesting that the public’s liberty is more important than the economic viability of publishers???!

    Plainly it isn’t. The public must be manacled, gagged, and sedated so that the publishers can give the public what they truly want. If only they’d just stop struggling…

  • http://www.codemonkeyramblings.com MikeT

    How about we also start with the idea that Web 2.0 is a poorly-defined idea. For some people it’s “people-driven” sites, for others it’s Ajaxy websites with weird names.

  • http://linuxworld.com/community/ Don Marti

    Anticircumvention law is not copyright law. It’s a whole new kind of law that acts something like patent law, except that its restrictions don’t expire as patent does.

  • http://www.codemonkeyramblings.com MikeT

    How about we also start with the idea that Web 2.0 is a poorly-defined idea. For some people it’s “people-driven” sites, for others it’s Ajaxy websites with weird names.

  • http://linuxworld.com/community/ Don Marti

    Anticircumvention law is not copyright law. It’s a whole new kind of law that acts something like patent law, except that its restrictions don’t expire as patent does.

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    The events at digg refute completely one of the stupid meme’s I have been seeing from the corporate fascist crowd (e.g., IP Central, CEI) which goes something like this: that the Free Culture/Open Source movement does not respond to market forces. Digg was exactly responding to market forces, when it stopped deleting posts with the number that AACS LA keep secret..

    I had expected that this would play out in much the same way that the disribution of the de CSS program did. De CSS is now available after a protracted legal battle, but only outside the USA. Of course, with the advent of the internet, that just means that you have to access a non-US site, and download the de CSS libraries from there.

    But in any case, the AACS LA sent out cease and desist letters. These cease and desist letters had the very predictable effect of causing everyone who cares about the First Amendment to post as many copies of the number everywhere they possibly could, including comments on websites, tee-shirts, bumper stickers, etc. etc.

    (Parenthetical thought: Couldn’t the AACS LA have seen this coming or were they really that stupid?)

    One of the sites that received a C&D takedown notice was the popular web site digg. Initially, digg took down posts with the key. In any case, digg users revolted, and posted and reposted the decryption key. They also indicated they would leave digg if their stories kept being deleted. Then something interesting happened.

    Digg depends on its community, and it interacts with them in way that is much more complex and iterative than the traditional “customer” buys from “manufacturer/author/producer” paradigm. The customers were therefore in a very unique position to influence diggs decision-making process, and influence it they did.

    Free Culture not tied to market forces? I don’t think so. I think all of the evidence points to the fact that Open Source is very tied to market forces. Just not the same forces that had propelled the large monopoly/oligopoly companies that promote their anti-freedom, crypto-fascist agenda through the PFF and CEI.

  • http://enigmafoundry.wordpress.com eee_eff

    The events at digg refute completely one of the stupid meme’s I have been seeing from the corporate fascist crowd (e.g., IP Central, CEI) which goes something like this: that the Free Culture/Open Source movement does not respond to market forces. Digg was exactly responding to market forces, when it stopped deleting posts with the number that AACS LA keep secret..

    I had expected that this would play out in much the same way that the disribution of the de CSS program did. De CSS is now available after a protracted legal battle, but only outside the USA. Of course, with the advent of the internet, that just means that you have to access a non-US site, and download the de CSS libraries from there.

    But in any case, the AACS LA sent out cease and desist letters. These cease and desist letters had the very predictable effect of causing everyone who cares about the First Amendment to post as many copies of the number everywhere they possibly could, including comments on websites, tee-shirts, bumper stickers, etc. etc.

    (Parenthetical thought: Couldn’t the AACS LA have seen this coming or were they really that stupid?)

    One of the sites that received a C&D; takedown notice was the popular web site digg. Initially, digg took down posts with the key. In any case, digg users revolted, and posted and reposted the decryption key. They also indicated they would leave digg if their stories kept being deleted. Then something interesting happened.

    Digg depends on its community, and it interacts with them in way that is much more complex and iterative than the traditional “customer” buys from “manufacturer/author/producer” paradigm. The customers were therefore in a very unique position to influence diggs decision-making process, and influence it they did.

    Free Culture not tied to market forces? I don’t think so. I think all of the evidence points to the fact that Open Source is very tied to market forces. Just not the same forces that had propelled the large monopoly/oligopoly companies that promote their anti-freedom, crypto-fascist agenda through the PFF and CEI.

  • http://www.limnthis.com Jim S

    “libertarianism is not about slavishly obeying the law”

    Which ones should we ignore and which ones not and who gets to decide? Cuz I kinda like your car.

  • http://www.techliberation.com/ Tim Lee

    Jim, each of us uses his or her own conscience to decide not he justice of defying unreasonable laws. Personally, I think “though shalt not steal” is an important principle. “Though shalt not post 16-byte numbers that have been floating around the Internet for weeks” doesn’t have the same ring to it.

  • http://www.limnthis.com Jim S

    Tim, that might be because you have a car. If you had content and no car you might want to protect 16-byte numbers instead of cars. If you are relying on a common understanding of “reasonableness” for which human behaviors should be consistently followed I think you are going to be dissapointed in your hoped-for utopian libertarian future.

    I’m not trying to be a smartass, I just think once we all start deciding individually which laws deserve our respect chaos ensues. Like driving in South Philly now that the “Philly Shuffle” means “stop signs apply to other people.” Just my $.02. I appreciate the thought provoking ideas here though. Thx.

  • http://www.limnthis.com Jim S

    “libertarianism is not about slavishly obeying the law”

    Which ones should we ignore and which ones not and who gets to decide? Cuz I kinda like your car.

  • http://www.techliberation.com/ Tim Lee

    Jim, I think it’s wrong to steal content. I don’t think it’s wrong to “steal” 16-byte numbers. And I don’t think the two issues are really related; most of the people writing HD-DVD hacking tools already had a copy of the key long before it showed up on Digg.

    We shouldn’t run stop signs because, as you suggest, it could lead to chaos. I have trouble seeing how what Digg’s users did could lead to chaos.

    Thanks for reading!

  • http://www.techliberation.com/ Tim Lee

    Jim, each of us uses his or her own conscience to decide not he justice of defying unreasonable laws. Personally, I think “though shalt not steal” is an important principle. “Though shalt not post 16-byte numbers that have been floating around the Internet for weeks” doesn’t have the same ring to it.

  • http://www.limnthis.com Jim S

    Tim, that might be because you have a car. If you had content and no car you might want to protect 16-byte numbers instead of cars. If you are relying on a common understanding of “reasonableness” for which human behaviors should be consistently followed I think you are going to be dissapointed in your hoped-for utopian libertarian future.

    I’m not trying to be a smartass, I just think once we all start deciding individually which laws deserve our respect chaos ensues. Like driving in South Philly now that the “Philly Shuffle” means “stop signs apply to other people.” Just my $.02. I appreciate the thought provoking ideas here though. Thx.

  • http://www.techliberation.com/ Tim Lee

    Jim, I think it’s wrong to steal content. I don’t think it’s wrong to “steal” 16-byte numbers. And I don’t think the two issues are really related; most of the people writing HD-DVD hacking tools already had a copy of the key long before it showed up on Digg.

    We shouldn’t run stop signs because, as you suggest, it could lead to chaos. I have trouble seeing how what Digg’s users did could lead to chaos.

    Thanks for reading!

  • http://www.limnthis.com Jim S

    Tim, sorry to press but something about your argument just doesn’t make sense to me. You can’t honestly mean to say that a number can never be considered “stolen.”

    You won’t mind if I post the 16 byte represenation of your brokerage account password right? How about your SSN? Home address and garage door code? They are just numbers. :)

    Unless I’m misunderstanding the issue at hand, the 16 byte number in question unlocks digital content under certain circumstances that the owner of the content doesn’t want to permit (I have no idea why the right to play a DVD should be tied to a particular piece of hardware but if bad customer service and stupid business practices were illegal and morally wrong, the DMV of most states would have been shut down decades ago). So to those content owners this number is of value and reverse engineering the content’s vehicle to obtain that number, and then publishing it seems pretty obvious to me a way to make it easier to thwart the content owners intentions. The fact that many people intending to violate copyright already had that number really is irrelevant isn’t it? Would you be ok with it I were the 75th person to post your brokerage password and home address?

    I know this may seem insane to say on this forum, but try to imagine the state of mind and world view that makes this kind of rights management seem reasonable to the people sending those take down notices.

    Three weeks before the movie is due to be released, bootleg copies of spiderman 3 are already being hawked on the streets of Beijing. Shortly it will be posted in ten minute chunks on youtube and the copyright owners will have to search diligently and then repeatedly provide take down notices to get it removed. That won’t matter though because it will already be traded in file form across multiple p2p mechanisms.

    The people that made a major investment of time, creativity, and let’s not forget, cash, in this movie are watching as the fruits of their labor are being passed around for free in a manner that they didn’t license. You might argue that “what can happen will happen” and the studios better just come up with a new business model (and they should), but in the meantime their old business model is protected by laws that people just choose to ignore like those stop signs in Philly.

    They SHOULD move faster to adopt a business model that is better suited for the new technological reality, but they are under no moral obligation to do it. A system that restricts which hardware a DVD can play on and then issuing takedown notices to all the places that number shows up after the cat is out of the bag is no doubt a stupid over reaction. But it is caused in no small part by the duress the industry finds itself in and it isn’t an unexpected reaction if you consider what options they have right now at their disposal to monetize their investments. What should they be doing? Let’s face it, if you make digital content in this world, you are just plain screwed. No wonder they are overreacting. It’s kind of like having 5 cars stolen from your driveway and then going kind of angry nuts and sawing the brake lines of the 6th car when you park it in front of your house.

  • http://blog.actonline.org Mark Blafkin

    Tim, Tim, Tim…you really do have a tremendous ability to miss my point. Perhaps it is my fault, I’ll try to improve my clarity in future posts, but I’m guessing it has more to do with your need for a straw man to beat.

    My point is that the “policy story” related to the DCMA is NOT the real story. The really interesting story here is the “business story” about Web2.0 (although I completely agree with Mike T’s point about the lack of a coherent definition for that term). For my purposes, I’m using Web2.0 to refer to sites that rely on user-generated content.

    My point is the same one that Richard Komen made over at Silicon Valley Watcher: this episode demonstrates the downsides of the user-generated content business model. For the people at Digg and other Web2.0 companies, this is not about some ivory tower mental masturbation. They have businesses to run, shareholders to protect, and kids to feed.

    Ignore the fact that you don’t AGREE with the law in question. For the executives running Digg, they spent last week staring into the business end of a gun. They could either risk their business at the hands of lawsuits or pissing off the activists in their user base. They really didn’t have a choice in the end. They choose to give in to the mob because that buys them another day…if they hadn’t Digg would have already been dead.

    This is a lesson that other Web2.0 companies and their investors will have to learn from.

  • http://www.limnthis.com Jim S

    Tim, sorry to press but something about your argument just doesn’t make sense to me. You can’t honestly mean to say that a number can never be considered “stolen.”

    You won’t mind if I post the 16 byte represenation of your brokerage account password right? How about your SSN? Home address and garage door code? They are just numbers. :)

    Unless I’m misunderstanding the issue at hand, the 16 byte number in question unlocks digital content under certain circumstances that the owner of the content doesn’t want to permit (I have no idea why the right to play a DVD should be tied to a particular piece of hardware but if bad customer service and stupid business practices were illegal and morally wrong, the DMV of most states would have been shut down decades ago). So to those content owners this number is of value and reverse engineering the content’s vehicle to obtain that number, and then publishing it seems pretty obvious to me a way to make it easier to thwart the content owners intentions. The fact that many people intending to violate copyright already had that number really is irrelevant isn’t it? Would you be ok with it I were the 75th person to post your brokerage password and home address?

    I know this may seem insane to say on this forum, but try to imagine the state of mind and world view that makes this kind of rights management seem reasonable to the people sending those take down notices.

    Three weeks before the movie is due to be released, bootleg copies of spiderman 3 are already being hawked on the streets of Beijing. Shortly it will be posted in ten minute chunks on youtube and the copyright owners will have to search diligently and then repeatedly provide take down notices to get it removed. That won’t matter though because it will already be traded in file form across multiple p2p mechanisms.

    The people that made a major investment of time, creativity, and let’s not forget, cash, in this movie are watching as the fruits of their labor are being passed around for free in a manner that they didn’t license. You might argue that “what can happen will happen” and the studios better just come up with a new business model (and they should), but in the meantime their old business model is protected by laws that people just choose to ignore like those stop signs in Philly.

    They SHOULD move faster to adopt a business model that is better suited for the new technological reality, but they are under no moral obligation to do it. A system that restricts which hardware a DVD can play on and then issuing takedown notices to all the places that number shows up after the cat is out of the bag is no doubt a stupid over reaction. But it is caused in no small part by the duress the industry finds itself in and it isn’t an unexpected reaction if you consider what options they have right now at their disposal to monetize their investments. What should they be doing? Let’s face it, if you make digital content in this world, you are just plain screwed. No wonder they are overreacting. It’s kind of like having 5 cars stolen from your driveway and then going kind of angry nuts and sawing the brake lines of the 6th car when you park it in front of your house.

  • http://blog.actonline.org Mark Blafkin

    Tim, Tim, Tim…you really do have a tremendous ability to miss my point. Perhaps it is my fault, I’ll try to improve my clarity in future posts, but I’m guessing it has more to do with your need for a straw man to beat.

    My point is that the “policy story” related to the DCMA is NOT the real story. The really interesting story here is the “business story” about Web2.0 (although I completely agree with Mike T’s point about the lack of a coherent definition for that term). For my purposes, I’m using Web2.0 to refer to sites that rely on user-generated content.

    My point is the same one that Richard Komen made over at Silicon Valley Watcher: this episode demonstrates the downsides of the user-generated content business model. For the people at Digg and other Web2.0 companies, this is not about some ivory tower mental masturbation. They have businesses to run, shareholders to protect, and kids to feed.

    Ignore the fact that you don’t AGREE with the law in question. For the executives running Digg, they spent last week staring into the business end of a gun. They could either risk their business at the hands of lawsuits or pissing off the activists in their user base. They really didn’t have a choice in the end. They choose to give in to the mob because that buys them another day…if they hadn’t Digg would have already been dead.

    This is a lesson that other Web2.0 companies and their investors will have to learn from.

  • Doug Lay

    Jim, what are you trying to say? That we should all empathize with dinosaurs who can’t adapt to new technological realities? I think I understand how Big Content thinks regarding this issue, and I think Tim understands too. But I don’t empathize. I think Big Content needs to change its thinking, and if they don’t change they deserve to go out of business, as the recording industry appears to be well on its way to doing.

  • Doug Lay

    Jim, what are you trying to say? That we should all empathize with dinosaurs who can’t adapt to new technological realities? I think I understand how Big Content thinks regarding this issue, and I think Tim understands too. But I don’t empathize. I think Big Content needs to change its thinking, and if they don’t change they deserve to go out of business, as the recording industry appears to be well on its way to doing.

  • http://www.techliberation.com/ Tim Lee

    Mark,

    I don’t really disagree with you about the business side of things, although I do think that if they get sued, they’ll get a ton of free publicity and strengthen their bond with their readers.

    My question is: if your interpretation is correct, doesn’t it bother you that the DMCA—by your own admission—effectively makes Web 2.0-stye businesses illegal? It’s not like Digg’s users are violating laws left and right. I don’t remember seeing pirated content, child pornography, or random peoples’ credit card numbers on Digg’s front page. So if Digg is making a good-faith effort to comply with the law, and they aren’t profiting from piracy, shouldn’t that be sufficient to shield it from liability?

  • http://www.limnthis.com Jim S

    Doug,

    Empathy is not the word I would have gone for. But understanding why a cornered animal bares its teeth is useful.

    The point is that they aren’t breaking the law; neither did the last person trying to sell washboards after the electric washer was invented and its not ok to steal their content just because their business model is becoming obsolete, any more than it would have been ok to steal those washboards “because they are made by dinasaurs.” It’s not illegal to be stupid and inflexible, it is illegal (and should be) to steal other people’s content even if they are stupid and inflexible.

    They will go out of business if they fail to adapt, that should go without saying. But why does that make it ok for all of us to steal their stuff? And why the moral outrage about their failure to adapt. Were we morally outraged at those dummies who kept trying to sell buggy whips after buggies became obsolete?

    I’m not really sure why I’ve gotten involved in this conversation. I may just be proving my ignorance by engaging in this disucssion but I just think the way the discussion has been framed is missing some basic realities.

    A friend of mine has a small business producing educational videos. The production costs are staggering for a small company and as soon as a video is produced it ends up on youtube thus making it very difficult to recoup the upfront investment. If there was a reasonable alternative for distribution to DVD that supported a reasonable asset monitization method I guess you could say shame on them for not getting with the times, but there isn’t.

    In my mind it is just stealing what people are doing with that content and they rationalize it by saying “those big mean companies are too rich and too dumb to change.” Forums like this just give it a nice “think tanky” sheen of justification. And frankly, I think you are being used. While you are pushing the liberatarian solution onto big content, big search and big apple are just using the dinasaur’s weakness to make themselves into the next generation oligarchy.

  • http://www.techliberation.com/ Tim Lee

    Mark,

    I don’t really disagree with you about the business side of things, although I do think that if they get sued, they’ll get a ton of free publicity and strengthen their bond with their readers.

    My question is: if your interpretation is correct, doesn’t it bother you that the DMCA—by your own admission—effectively makes Web 2.0-stye businesses illegal? It’s not like Digg’s users are violating laws left and right. I don’t remember seeing pirated content, child pornography, or random peoples’ credit card numbers on Digg’s front page. So if Digg is making a good-faith effort to comply with the law, and they aren’t profiting from piracy, shouldn’t that be sufficient to shield it from liability?

  • Doug Lay

    Jim:

    Violating the DMCA anti-circumvention provision is not the same thing as taking content without permission. There are legitimate reasons to circumvent copy protection. Please don’t confuse (or deliberately obfuscate) the distinction between the two by whining about stealing. DRM doesn’t prevent stealing, and it curbs legitimate uses.

    I think most folks here are smart enough to see that companies like Google and Apple have their own agendas. They’re still a lot better, from a geek-libertarian perspective, than the content dinosaurs. Google and Apple benefit from the free flow of information. Content dinosaurs benefit when the flow of information is restricted.

  • http://www.limnthis.com Jim S

    Doug,

    Empathy is not the word I would have gone for. But understanding why a cornered animal bares its teeth is useful.

    The point is that they aren’t breaking the law; neither did the last person trying to sell washboards after the electric washer was invented and its not ok to steal their content just because their business model is becoming obsolete, any more than it would have been ok to steal those washboards “because they are made by dinasaurs.” It’s not illegal to be stupid and inflexible, it is illegal (and should be) to steal other people’s content even if they are stupid and inflexible.

    They will go out of business if they fail to adapt, that should go without saying. But why does that make it ok for all of us to steal their stuff? And why the moral outrage about their failure to adapt. Were we morally outraged at those dummies who kept trying to sell buggy whips after buggies became obsolete?

    I’m not really sure why I’ve gotten involved in this conversation. I may just be proving my ignorance by engaging in this disucssion but I just think the way the discussion has been framed is missing some basic realities.

    A friend of mine has a small business producing educational videos. The production costs are staggering for a small company and as soon as a video is produced it ends up on youtube thus making it very difficult to recoup the upfront investment. If there was a reasonable alternative for distribution to DVD that supported a reasonable asset monitization method I guess you could say shame on them for not getting with the times, but there isn’t.

    In my mind it is just stealing what people are doing with that content and they rationalize it by saying “those big mean companies are too rich and too dumb to change.” Forums like this just give it a nice “think tanky” sheen of justification. And frankly, I think you are being used. While you are pushing the liberatarian solution onto big content, big search and big apple are just using the dinasaur’s weakness to make themselves into the next generation oligarchy.

  • http://www.techliberation.com/ Tim Lee

    Jim, as Doug says, the key distinction here is between stealing content and circumventing DRM. I’m against downloading copyrighted content without paying for it. But I’m not against fast-forwarding through commercials on DVDs, or playing region 1 DVDs in a region 2 country, or playing iTunes songs on a Zune player. Yet the DMCA makes no distinction between these things. Circumventing is illegal, no matter what your purpose in circumventing might be. I don’t think that’s right.

  • http://blog.actonline.org Mark Blafkin

    My question is: if your interpretation is correct, doesn’t it bother you that the DMCA—by your own admission—effectively makes Web 2.0-stye businesses illegal? It’s not like Digg’s users are violating laws left and right. I don’t remember seeing pirated content, child pornography, or random peoples’ credit card numbers on Digg’s front page. So if Digg is making a good-faith effort to comply with the law, and they aren’t profiting from piracy, shouldn’t that be sufficient to shield it from liability?

    Tim, I do not believe the DMCA makes those businesses illegal at all. If Digg was making a good-faith effort to comply with the law, then they should be shielded from liability. That is what they were trying to do (and I think would have been protected based on their actions). However, the DMCA-activist wing of their user base threatened to leave if they didn’t stop their “good-faith” efforts.

    The interesting aspect of this story is just how fragile Web2.0 businesses really are. When a company’s value is based entirely on its userbase (not on its product), they have to do anything they can to protect that asset. Given that Gen X and Gen Y audiences are not slavishly married to brands for life (despite their love of brands) and Web2.0 companies rarely have radically different feature sets from their competitors, they will have to follow every whim of their users. Even if it means effectively breaking the law and opening themselves up to business-ending lawsuits.

  • http://www.techliberation.com/ Tim Lee

    Mark, keep in mind that the letters Digg received were not notice-and-takedown letters under the DMCA’s “safe harbor” rules. Instead, they were cease-and-desist letters under the DMCA’s anti-circumvention provisions, which don’t have a safe harbor clause. So it’s not at all obvious that they would have escaped liability even if they had promptly taken individual stories down. Most likely, they would have had to completely shut down and re-design the site so that stories could no longer be posted without previous approval by Digg’s staff.

  • Doug Lay

    I think the core problem, if people are straightforward enough to admit it, is that the Internet and copyright just plain don’t play well together. This “global village” may just not be big enough for the two of ‘em.

  • Doug Lay

    Jim:

    Violating the DMCA anti-circumvention provision is not the same thing as taking content without permission. There are legitimate reasons to circumvent copy protection. Please don’t confuse (or deliberately obfuscate) the distinction between the two by whining about stealing. DRM doesn’t prevent stealing, and it curbs legitimate uses.

    I think most folks here are smart enough to see that companies like Google and Apple have their own agendas. They’re still a lot better, from a geek-libertarian perspective, than the content dinosaurs. Google and Apple benefit from the free flow of information. Content dinosaurs benefit when the flow of information is restricted.

  • http://www.techliberation.com/ Tim Lee

    Jim, as Doug says, the key distinction here is between stealing content and circumventing DRM. I’m against downloading copyrighted content without paying for it. But I’m not against fast-forwarding through commercials on DVDs, or playing region 1 DVDs in a region 2 country, or playing iTunes songs on a Zune player. Yet the DMCA makes no distinction between these things. Circumventing is illegal, no matter what your purpose in circumventing might be. I don’t think that’s right.

  • http://blog.actonline.org Mark Blafkin

    My question is: if your interpretation is correct, doesn’t it bother you that the DMCA—by your own admission—effectively makes Web 2.0-stye businesses illegal? It’s not like Digg’s users are violating laws left and right. I don’t remember seeing pirated content, child pornography, or random peoples’ credit card numbers on Digg’s front page. So if Digg is making a good-faith effort to comply with the law, and they aren’t profiting from piracy, shouldn’t that be sufficient to shield it from liability?

    Tim, I do not believe the DMCA makes those businesses illegal at all. If Digg was making a good-faith effort to comply with the law, then they should be shielded from liability. That is what they were trying to do (and I think would have been protected based on their actions). However, the DMCA-activist wing of their user base threatened to leave if they didn’t stop their “good-faith” efforts.

    The interesting aspect of this story is just how fragile Web2.0 businesses really are. When a company’s value is based entirely on its userbase (not on its product), they have to do anything they can to protect that asset. Given that Gen X and Gen Y audiences are not slavishly married to brands for life (despite their love of brands) and Web2.0 companies rarely have radically different feature sets from their competitors, they will have to follow every whim of their users. Even if it means effectively breaking the law and opening themselves up to business-ending lawsuits.

  • http://www.techliberation.com/ Tim Lee

    Mark, keep in mind that the letters Digg received were not notice-and-takedown letters under the DMCA’s “safe harbor” rules. Instead, they were cease-and-desist letters under the DMCA’s anti-circumvention provisions, which don’t have a safe harbor clause. So it’s not at all obvious that they would have escaped liability even if they had promptly taken individual stories down. Most likely, they would have had to completely shut down and re-design the site so that stories could no longer be posted without previous approval by Digg’s staff.

  • Doug Lay

    I think the core problem, if people are straightforward enough to admit it, is that the Internet and copyright just plain don’t play well together. This “global village” may just not be big enough for the two of ‘em.

  • http://www.limnthis.com Jim S

    Doug, I basically agree with your statement but I am not “intentionally obfuscating” in drawing a linkage between DRM and stealing content. They are linked because one follows from the other. If content owners weren’t worried about people stealing their content they wouldn’t bother with the DRM stuff in the first place. And lots and lots of people are stealing their content and wrapping it some kind of Boston Tea Party rhetoric so they can rationalize it. The DRM is over reaching and bad for business but it is linked to the theft, to argue otherwise is specious.

    Tim, we are in agreement on your last post. Stealing content is wrong but not being able to play my iTunes songs on a different device is irritating. However, I knew that to be the case when I bought it – which is exactly why I still buy and rip CD’s. I buy fewer songs from iTunes because the value isn’t there considering the limitations. Don’t you think that ultimately the market will correct the situation by punishing the players that treat their customers as the least important players in the equation? I guess I can summarize my pov on this by saying it just stupid and inflexible to make your product’s user experience suck, but it isn’t immoral or illegal to do it, and the market is the best mechanism to correct it.

    This problem isn’t going to go away until someone can provide a reasonable alternative to intrusive DRM that allows the people who create or invest in content to be reasonably confident that they can build a business model around it. That is the one thing that is conspicuously missing in this discussion.

  • http://www.techliberation.com/ Tim Lee

    Jim, DRM itself doesn’t “allow the people who create or invest in content to be reasonably confident that they can build a business model around it.” So why is the burden of proof on DRM critics to come up with a system that works where DRM doesn’t?

  • http://www.limnthis.com Jim S

    Doug, I basically agree with your statement but I am not “intentionally obfuscating” in drawing a linkage between DRM and stealing content. They are linked because one follows from the other. If content owners weren’t worried about people stealing their content they wouldn’t bother with the DRM stuff in the first place. And lots and lots of people are stealing their content and wrapping it some kind of Boston Tea Party rhetoric so they can rationalize it. The DRM is over reaching and bad for business but it is linked to the theft, to argue otherwise is specious.

    Tim, we are in agreement on your last post. Stealing content is wrong but not being able to play my iTunes songs on a different device is irritating. However, I knew that to be the case when I bought it – which is exactly why I still buy and rip CD’s. I buy fewer songs from iTunes because the value isn’t there considering the limitations. Don’t you think that ultimately the market will correct the situation by punishing the players that treat their customers as the least important players in the equation? I guess I can summarize my pov on this by saying it just stupid and inflexible to make your product’s user experience suck, but it isn’t immoral or illegal to do it, and the market is the best mechanism to correct it.

    This problem isn’t going to go away until someone can provide a reasonable alternative to intrusive DRM that allows the people who create or invest in content to be reasonably confident that they can build a business model around it. That is the one thing that is conspicuously missing in this discussion.

  • http://www.techliberation.com/ Tim Lee

    Jim, DRM itself doesn’t “allow the people who create or invest in content to be reasonably confident that they can build a business model around it.” So why is the burden of proof on DRM critics to come up with a system that works where DRM doesn’t?

  • http://www.limnthis.com Jim S

    Cuz my Dad always said “If you aren’t part of the solution you’re just whining.” :)

  • http://www.pff.org Noel

    ***why is the burden of proof on DRM critics to come up with a system that works where DRM doesn’t?***

    Because its not your money and livelihood you’re risking with these calls for freedom to tinker.

  • Doug Lay

    Noel:

    DRM isn’t salvaging anyone’s money or livelihood. Ask the recording industry.

    Also, we’re not calling for freedom to tinker. we’re exercising it. Try and stop us.

  • http://www.limnthis.com Jim S

    Cuz my Dad always said “If you aren’t part of the solution you’re just whining.” :)

  • http://www.pff.org Noel

    ***why is the burden of proof on DRM critics to come up with a system that works where DRM doesn’t?***

    Because its not your money and livelihood you’re risking with these calls for freedom to tinker.

  • Doug Lay

    Noel:

    DRM isn’t salvaging anyone’s money or livelihood. Ask the recording industry.

    Also, we’re not calling for freedom to tinker. we’re exercising it. Try and stop us.

  • http://www.limnthis.com Jim S

    Nice sentiment Doug. I’m sure you’ll bring a lot of people around to your point of view. Why so angry though? I mean when the farmers rallied to Mao (is that him on the banner of this site by the way?), or the world’s laborers and intellectuals to the International Brigades in Spain, it was for deeply held beliefs that held life or death consequences for people. You’re this pissed off because you can’t play a DVD on a Linux machine or, God forbid, because you can’t play an iTunes download from a Zune? Seriously, we’re talking about the right to Beyonce and Predator vs. Alien here. Play the Horst Wessel song on that Zune and get to marching! Left right left, left right left…

    I can’t stop laughing as I type this. I hope you manage to see the humor in it.

  • http://www.limnthis.com Jim S

    Nice sentiment Doug. I’m sure you’ll bring a lot of people around to your point of view. Why so angry though? I mean when the farmers rallied to Mao (is that him on the banner of this site by the way?), or the world’s laborers and intellectuals to the International Brigades in Spain, it was for deeply held beliefs that held life or death consequences for people. You’re this pissed off because you can’t play a DVD on a Linux machine or, God forbid, because you can’t play an iTunes download from a Zune? Seriously, we’re talking about the right to Beyonce and Predator vs. Alien here. Play the Horst Wessel song on that Zune and get to marching! Left right left, left right left…

    I can’t stop laughing as I type this. I hope you manage to see the humor in it.

  • Doug Lay

    Jim:

    I’ll repeat myself here, since this I’ve heard this put-down repeated over and over. This is not about the right to play DVDs. This is about the right of citizens to control their own computers.

    I’m not laughing.

  • Doug Lay

    Jim:

    I’ll repeat myself here, since this I’ve heard this put-down repeated over and over. This is not about the right to play DVDs. This is about the right of citizens to control their own computers.

    I’m not laughing.

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