Articles by Tim Lee

Not much in the case of Sony’s latest clumsy attempt at copy protection. The Register links to a report at Sysinternals that investigates the sketchy things that Sony does to prevent you from making too many copies of its CDs:

The Sony CD creates a hidden directory and installs several of its own device drivers, and then reroutes Windows systems calls to its own routines. It intercepts kernel-level APIs, but then attempts to disguise its presence, using a crude cloaking technique. Disingenuously, the copy restriction binaries were labelled “Essential System Tools”. But the most disturbing part of the tale came when Russinovich ran his standard rootkit-removal tool on the post-Sony PC. “Users that stumble across the cloaked files with a RKR scan will cripple their computer if they attempt the obvious step of deleting the cloaked files,” he writes.

So here’s my question, in all seriousness: how would the DMCA apply to this case? Poorly-written device drivers can be a threat to your computer’s stability and security–not to mention that it apparently slows down your computer even when you’re not playing a CD. But maybe removing it would constitute circumvention of a copy-protection scheme? Maybe I can remove it when the CD is not in the computer, but I have to allow it to be re-installed when I’m playing the CD? Would an anti-virus program that prevents it from being installed constitute a circumvention device? What if I disable the “autorun” feature in Windows? Is that circumvention?

The DMCA debate often proceeds as though “circumvention” is a clearly defined, obvious concept. But I think this example shows that it ain’t so. I assume that disabling auto-run (which requires changing one value in the registry isn’t illegal, but then where do you draw the line? Does “circumvention” require a minimum amount of technological sophistication? Or does the law simply require that I keep badly written device drivers on my system forever if they were put there as part of a DRM scheme?

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James DeLong has a good post on the copyright issues raised by Google Print. He highlights past cases in which property rights have been changed to reflect changing technological and institutional realities:

The controversy highlights one of the most important dimensions of property rights, in both theory and practice, which is that property rights regimes are not cast in stone. They are established under a particular set of technological and institutional conditions, and as these change some rethinking and evolution is required and inevitable. Such change is tricky business, because any concession that property rights are malleable turns into a handy excuse for massive rent-seeking. One road to riches is to persuade governments to redefine property rights so as to take what other people had and give it to you, pleading the need for adaptation to new circumstances.

I actually think there’s a fairly clear distinction to be drawn between changes to property rights on the one hand, and clarifications on the other hand. He talks about the case of airplanes. In theory, property law said that a property owner owned all the air above his land, but with the advent of commercial aviation, that doctrine quickly fell by the sayside. Here’s DeLong’s take:

So, obviously, there was a massive transfer of property rights in the heavenly sphere away from landowners to the nascent aviation industry. You can say that property rights were simply redefined so as to recognize the reality that you do not really own all the way to the sky, or you can say that pre-existing rights were indeed taken, a la eminent domain, and that compensation was due, but that the value of the right to the landowner was zero, so the compensation due was zero. But there is still a redefinition involved because, obviously, the right to extract ransom from airplanes, once they have been invented, is not zero.

I think there’s a third way to think about it: property rights were neither re-defined or transferred. Rather, an ambiguity in the existing rules was resolved. The common law property rights doctrines that existed at the time of the Wright Brothers flight had been developed over centuries by judges who had never seen, and probably couldn’t have imagined, commercial airflight. So while the official doctrine was that you owned the air above your land, it wasn’t clear what that meant. No one had ever been able to fly, so what exactly constitutes tresspass wasn’t well-defined. You could make a plausible argument that flying over someone’s land at 10,000 feet was so fleeting a presence on any particular landowner’s land (indeed, it might be difficult to determine exactly whose land a particular airplane passed over) that it didn’t merit being called tresspass.

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I’ve got a new article up at Reason about a disingenuous argument that’s often heard in copyright debates: that those who defend the traditional scope of copyright (including principles such as fair use and limited terms) are really just opponents of intellectual property who want to (as Jame DeLong put it a couple of months ago) “abolish intellectual property rights in favor of some mystical commune wherein all IP is free as the air and creators are compensated by government.”

Now obviously there are a few IP anarchists out there who want to do precisely that. But that’s not the position of mainstream copyright industry critics. Rather, they are defenders of America’s copyright traditions, which delimits the rights of copyright holders to ensure that copyright does not smother innovation or impoverish our culture.

These are complicated issues. Products like Google Print and Grokster raise difficult questions about how the law can best ensure that artists and authors are compensated without stifling what are undeniably important technological advances.

But it seems that a lot of people on the other side don’t like dealing with these nuances. So instead, they’d like to frame the debate as being a disagreement over “property.” There’s a “pro-property” side that thinks piracy is bad, and an “anti-property” side that doesn’t think piracy is a big deal, just as in Kelo, there was a pro-property side that wanted to rein in eminent domain abuse and an anti-property side that doesn’t think eminent domain abuse is a big deal.

Efforts like the Grover Norquist’s Property Rights Alliance, which I discuss briefly in my article, are all about convincing people on the libertarian and conservative right that that’s what’s at stake. By putting the RIAA, MPAA, et al side-by-side with anti- Kelo activists, they subtly reinforce the idea that they’re fighting the same battle–that, like the eminent domain debate, it’s an argument between a pro-property right and an anti-property left. As I explain in my article, that’s not what’s at stake, and it’s vital that that framing not be allowed to dominate the copyright debate.

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Walt Mossberg has a great column criticizing digital rights management technology. He gets the fundamental point that DRM harms consumers by needlessly restricting how, when, and where they can consume content they have legally purchased:

I believe that consumers should have broad leeway to use legally purchased music and video for personal, noncommercial purposes in any way they want–as long as they don’t engage in mass distribution. They should be able to copy it to as many personal digital devices as they own, convert it to any format those devices require, and play it in whatever locations, at whatever times, they choose.

And he suggests boycotting DRM’ed products, such as copy-protected CDs, that overly restrict consumer choice.

However, he makes a fundamental error:

Instead of using DRM to stop some individual from copying a song to give to her brother, the industry should be focusing on ways to use DRM to stop the serious pirates–people who upload massive quantities of music and videos to so-called file-sharing sites, or factories in China that churn out millions of pirate CDs and DVDs.

Princeton CS professor Ed Felten’s reaction is right on the money:

This is a nice vision, but it’s not really possible. It’s abundantly clear by now that no DRM system can stop serious pirates. A DRM system that stops serious pirates, and simultaneously gives broad leeway to ordinary users, is even harder to imagine. It’s not going to happen.

No one has ever invented an un-crackable DRM system. When a new DRM system is released, it invariably takes just a few weeks for someone to release a cracking tool.

That’s not a coincidence. Bits are inherently copyable. Building an un-copyable bit isn’t just a difficult engineering challenge. On a general-purpose computer, it’s impossible. If a computer can read a piece of data, it can make a copy of it. The best you can do is to obfuscate the content so that figuring out how to make the copy is difficult and time-consuming. But that kind of obfuscation won’t stop a professional pirate or a hobbyist cracker with a lot of time on his hands.

Incidentally, it’s worth noting that probably the world’s most famous DRM cracker, Jon Lech Johansen has moved from his native Norway to San Diego to work for Michael Robertson, the the founder of the ill-fated MP3.com and (later) Lindows/Linspire. Johansen produced software to crack the copy-protection on DVDs at the age of 16, and more recently he’s cracked the copy-protection on Apple’s iTunes Music Store. It’s not clear what he’ll be doing, but it’s a safe bet that Hollywood and the recording industry won’t like it.

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After reading James DeLong’s defense of Patrick Ross’s CNET article on the DMCA, I have to admit that I was being unfair to call the article “incredibly confused.” I interpreted Patrick to be saying that the DMCA literally allows consumers to break contracts they’ve made with content providers. But after reading DeLong’s defense, it’s clear to me that what Patrick meant is that a digital rights management scheme is like a contract in the sense that it allows publishers to place various restrictions on the use of their intellectual property and sell it at different prices. While this isn’t literally a contract (as Patrick might concede) perhaps it’s contract-like device that allows certain beneficial transactions to occur (such as a limited-time online rental of a movie) that would otherwise be impossible.

There’s a kernel of truth to this argument. Certainly if a content producer knows that renting videos online will lead to rampant piracy and destroy the market for purchasing videos, the producer will be reluctant to offer a rental option. Consumers clearly don’t benefit from fewer choices.

But this analysis misses two important points. The first is philosophical: a DRM isn’t a contract, and in several important ways, it’s not even very similar to a contract. As I noted in my previous post, the DRM “contract” is entirely one-sided. Its terms are set by the publisher and the publisher has the power to unilaterally and retroactively change them. If Apple sells a song to a consumer, it is under no obligation to ensure that the DRM scheme enforces the terms stated at the time of sale. Apple is free to change or reduce the functionality available to the consumer (such as reducing the amount of burning permitted) and the consumer has absolutely no recourse.

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