Last night I went to listen to Cory Doctorow in the Muhka, Museum of Contemporary Arts, in Antwerp. I had a great time there. I arrived a bit early so I had the chance to talk a bit with Cory before he started his speech, because he sat right in front of me. The ice was quickly broken because one of my internet buddies and guides, Randy Charles Morin, the coding monkey behind R|Mail and the KBCafe Network and a lot of other stuff, and Cory used to work together on projects as OpenCola and DudeCheckThisOut. The world is a small place when people have the internet :)
After some smalltalk, I asked Cory about his function in the EFF, the Electronic Frontier Foundation. Cory said he had retired from the organization and is no longer an active member since january 1st this year. So then I asked about the broadcast flag and about the possiblility that a higher court in the US may still overturn the ruling that the FCC had exceeded its authority in creating a rule that said hardware must “actively thwart” piracy. Cory believes very much common sense will be strong enough, if the public is aware of the broadcast flags’ content, to overrule the request of organizations as the FCC.
Cory says that the thing that worries him about television is that “in the rubric of making the world safe for television and television safe for the world, we’re endangering some of the fundamental liberties that we enjoy. We’re about to sell out the future of technology, the internet, free speech, due process and competition in order to rescue television.” That indeed is a deadly and dangerous place to be in. Yesterday Cory wanted to talk about some of the ways that’s happening, and how we, as consumers of media or viewers of television can fight back.
Let’s tune in for the first twenty minutes of his speech :
“What this is all about isn’t copyright per se, although it’s often characterized as ‘copyright proctection’ or ‘a copyright issue’. This is about a rewriting of a copyright bargain to encompass areas that have never been countenanced in copyright law. To cover areas of private use and of social contract that have never been within the rights of an author to determine or to set.”
This is a mechanism for bootstrapping a monopoly over who gets to copy one’s works into a monopoly over who gets to design and deploy technologies capable of copying one’s works and which features those technologies will be allowed to have in the end.
The thing that worries me most about all of this is the impact that it’s going to have on free and open source software. Free and open source software is like the proprietary software you’ve probably encountered like Microsoft Windows, Apple’s mail client, the early versions of Netscape and so on. Those technologies are like free and open source software but the difference between them and open source software is that in the case of free and open source software the code necessary to make those programs is published. And it’s published under a license that allows anyone else to take that code and modify it, and understand it and improve upon it and publish it again. Now if that sounds familiar, it’s because of the thing that bootstrapped us out of the dark ages and got us the enlightenment.
For 500 years, there were no chemists, there were alchemists. Alchemists are kind of precursor to scientists who were attempting to turn lead into gold and to understand more about the physical universe. And the thing that characterized alchemists more than anything was that alchemists didn’t tell each other what they’d discovered. And so for 500 years every alchemist discovered for himself, the hard way, that drinking mercury was a bad idea. And then one alchemist began to publish his research, and then another and then another. And in a hundred years we had the enlightenment that outstood 5 centuries worth of progress by the simplex media of telling people what you’ve learned and allowing them to build on what you’ve done. ‘If you see farther, it’s because you stand on the shoulders of giants’ as Newton said.
Digital Rights Management technologies, the technologies that are being used to lock down digital television and devices that can connect to digital television, like computers, is not science. It’s based on the idea that the owner of a computer or the owner of a television is the attacker of that television. And that you can somehow prevent the person who owns the device from gaining access to it in ways that you would prefer they didn’t get access to it. For example you can flag a show so that it can’t be recorded, it can only be watched and you can somehow prevent the recording device in my living room from recording a show. It’s kind of like saying we’ve built a safe that’s so secure that we’ve left it in the bankrobber’s living room. If the attacker has physical permanent unlimited access to the safe it’s a surety that eventually the technology will be broken. And of course the people who propose these technologies agree with this. They say: ‘well this isn’t meant to be proof against a skilled attacker. Someone who understands what he’s about someone who’s in possession of the tools necessary to open a safe. Someone who has a blowtorch and some dynamite.’ This is meant to be proof against you and me, average individuals who wouldn’t know how to brake open a safe even if it were sitting right there at the end of your sofa.
But the thing is that in order to gain access to the works that have been locked away in a safe somewhere, in the age of the internet, you don’t need to know how to open a safe. You only need to know how to search the internet for the copy that someone else has taken out of some other safe, somewhere in the world, and put online. Which means that you don’t have to be a skilled attacker to gain access to these works. You only have to be a skilled attacker to make ‘the first’ copy of these works.
So as a system for preventing the people from making unlimited reuse of these works, DRM fails. What DRM succeeds at is at locking us in to technologies so that we have to continue buying them forever, and locking us out of uses that we’re allowed to make under copyright law. So copyright law is generally considered to be a bargain between authors or creators and the public. Authors get some exclusive rights in respect of their works and all the rights that authors don’t get, the public gets. So for example: I sell you a book. And I get the right to tell you whether or not you’re allowed to photocopy that book and sell it on a blanket outside the main station. I get the right tell you whether you can make a film out of that book. I get the right to tell you all kinds of things about that book but I can’t tell you for example what country you’re allowed to read that book in. I can’t tell you whether or not you’re allowed to read that book to your children and if you’re blind in most of the world I’m not allowed to tell you whether or not you’re allowed to convert that book to braille or text so that it can be converted to speech, subsequently, in most of the world blind people have the unlimited right to transcode books into assistive formats.
What DRM does is that it allows rightsholders to invent new rights that aren’t in the copyright statutes that they can claim for themselves. So if you ever brought a DVD home from America, or from Asia and popped it into a DVD player in Europe -one that hasn’t been illegally modified to allow you to watch multiregion DVDs- you’ll find that a rightsholder has invented a new law. That law is that having sold you the DVD, they get to tell you what country you’re allowed to watch the DVD in. That’s not a law in copyright. That’s not part of the copyright bargain. But what DRM does is it allows people to invent business models through which they can get more money out of the people who chose not to download their media from the internet through unauthorized services.
Keep in mind, the only people who will ever encounter DRM, are the people who start off by saying: ‘well I’m not going to download this over bittorent, I won’t get a copy of this from Kazaa, I’m going to go to the High Street and I’ll buy it from a Tower Records. Those are the people who’ll get CD’s that are restricted, who’ll get movies that are restricted. Those are the people who find themselves locked in.
DRM is not a contract. We often hear DRM being characterized as a contract. What they say is that DRM ‘may’ take away some of the rights that copyright law gives you but it’s in consideration for some benefit. Surely we should all be allowed to freely contract, to wave some of our rights to get some rights back. Maybe you agree only to rent those movies, maybe you agree to wrap it in a DRM wrapper that will erase the movie when you’re finished watching it, or after a short period of time. When you actually examine the functioning of a DRM contract you’ll find it resembles no contract that we’re accustomed to in the real world. For example: I was at a DRM standards meeting with the representative for the Motion Picture Assiciation of America, and we were discussing whether or not a flag could be inserted into digital television in Europe that would allow your tv, your receiver to switch off certain outputs depending on which program you are watching. In other words they would say: ‘while you’re watching this show, the output that connects to your DVD recorder won’t work or to your old-style analogue tv-set or old-style analogue VCR won’t work. Or certain other devices might not work. Say the output that connects to your computer wouldn’t work. Show on show, depending on which show you’re watching. So I said: ‘how would that work?’ and he said: ‘well maybe you would wave your right to record a show or to watch it on this set or to tune it in using this piece of computer equipment in exchange for consideration, in exchange for the right to watch the show you’d enter into that bargain. And shouldn’t people have the right to enter into a bargain like that?’ And I said: ‘Sure, maybe we could enter in those kinds of bargains… would you tell me how we make a bargain like that? How that bargain would work? What would be the mechanism by which I agree to that contract?’ and he said: ‘Well you know, you’d be watching channel 3, and you take your remote and you press ‘channel up’ and now you’d be watching channel 4, and when you press ‘channel up’ you agree to whatever terms were set for channel 4. You’ve made an agreement’.
That’s a funny kind of agreement. It’s the kind of agreement you might find if you walked into a shop and the shopkeeper punched you in the mouth and you say: ‘why did you punch me in the mouth?’ he’d say: ‘well if you look under the doormat of another shop you’ll find that it says ‘people who enter my shop agree to let me punch’em in the mouth.’ It’s a funny kind of agreement, but it gets funnier.
If you bought some iTunes, a couple of years ago when iTunes was up to version 4.0, you got a bunch of rights with those iTunes. You got the right for example to stream your music from one computer to another. Now at that time I was living in San Francisco and working for the Electronic Frontier Foundation, I had a computer at home and I had a laptop that I took to work and the computer at home had a much bigger hard drive than my laptop so I kept all my music on that including all my iTunes. And the cool thing was that iTunes 4.0 had the ability to streal music from one computer to another. So I used it to listen to my home music while I was at work. It was great. Now when Apple shipped iTunes 4.01, the next update which was supposed to improve functionality, it clawed that feature back. In fact time and time again Apple has clawed back new features. At one point you could stream your music to any 5 people that you wanted, five people at a time as many as you wanted for a 24 hour period, now you can only stream to 5 people total per 24 hour period. At one point you could burn a playlist ten times, now it’s 7 times and so on and so forth. These changes have been made, time and again and they’re generally presented to you as non-optional or semi-optional updates to iTunes, generally with very small amounts of consumer information about what you’re losing.
Now if you took your car to the garage for its regular checkup, as mandated by the manufacturer, and when you took it out again you found that they’ve taken out your phone charger, ripped it out and replaced it with a new lighter arrangement that wouldn’t take your phone charger anymore because while you had it in the garage they’ve made a new deal with Nokia to block out SonyEricsson phones, I think you’d be very upset. But what we find is with our music and our movies and our books that our software, our tools are being updated time and again to claw back rights. Now it’s not a big deal, if it’s a car. Because there’s someone else who can fix your car. If the manufacturer upsets you enough you can always go somewhere else and get your car fixed. And certainly you can always imagine that someone out there will figure out a way to plug something new into your car cigarette lighter. But with DRM we have laws that make it unlawful to do just that. We have 80 certain mention laws that are embodied in Europe through the EUCD, the European Union Copyright Directive and in America through the Digital Millennium Copyright Act and all around the world through laws that exceed to a WIPO treaty, the WIPO copyright treaty of 1996 or WCT, that’s all over the world, every country that has got electricity pretty much either has a WCT invitiation or is about to get one, usually as a condition of bilateral or mulitlateral trade arrangements with the EU or America or both.
Under these laws it’s unlawful to break a lock off of a piece of media, it’s unlawful to tell someone how to break a lock off of a piece of media, it’s unlawful to tell someone who they should ask, who might be able to tell them how to break a lock off of a piece of media. You already had some Norwegian teenager who’s spent years in court before his country adopted the EUCD, fighting over a law, fighting over a charge rather, that he had broken the law because he had gone into his own computer to look at how his own movie player worked and open up that movie player and make a new movie player that would let him watch his own movies on his own computer in the way of his choice and he told other people how to do this. They said essentially that he was guilty of unlawfully accessing a computer system, and when he asked which computer system he had unlawfully accessed, they said it was his own. So it’s fine if your manufacturer wants to engage in these terrible anticompetitive practices IF you can go to another manufacturer. It’s fine if the guy who makes your stereo turns out to be a jerk if you can play your CDs on someone else’s stereo. But when it comes to DRM, you can only play your DRM on the stereo provided by the DRM provider. You can’t play it on someone else’s stereo. And someone who makes the stereo that’ll play it, that person brakes the law.Apple sued Real Media when they made a compatible player for the iPod that would play Real Tunes music as well as iTunes music on the iPod.
DRM is not a contract in some other ways, even if you say that we could agree to these contracts, generally speaking we say that having agreed to them, we finalize them but as we’ve seen with iTunes and more recently in the US there is a case were TiVo was updated without people’s permission – TiVo is a digital tv recorder that records your favorite tv shows and stores them on a box that’s aside of your television- TiVo was updated without your permission, without your knowledge to include a new copyrestriction system called Macrovision, and what Macrovision lets program creators do and program broadcasters do is flag some shows as ‘not recordable’. And so the TiVo, when you set it to record some shows, it won’t record them if they had this ‘flag’ set. So when you bought your TiVo, you bought a device that would record everything on the air and then a month later they changed your TiVo so that it would record everything that’s on the air that wasn’t flagged as ‘not recordable’. Your VCR would still record those shows, the law lets you record those shows but your TiVo won’t let you record those shows.
Finally, DRM can’t be open source. Open source technologies are technologies that are designed, understood, modified, improved upon by their users, by their owners. The Linux operating system, the Firefox browser, and numerable other pieces of critical infrastructure that make up the internet and your desktop are built on free and open source software. DRM presumes that the owner of the computer, that the user of the computer is the attacker. And that the user or owner of the computer won’t be able, shouldn’t be able to change the computer to change the restrictions. If you got a piece of media that says that this media may be played on five computers, the owner of the computer shouldn’t be able to go in and change that to 15. But in the instance of free and open source software you CAN in fact go in and change it to 15. And that is a consequence you see in the licencing arragements and regulatory mandates for DRM; there’s always a requirement that these systems would be made resistant to user-modification, which is to say: not open source.
Now under way in Europe is a proposal for a sweeping DRM system that will touch digital television and everything that sits downstream from digital television, including personal computers, general purpose devices and special purpose devices, like for instance the iPod. The DRM proposal, is something called CPCM, Copy Protection Content Management, that comes from a standards body group called the Digital Video Broadcasters or the DVB, DVB specifies the standards for the use of digital television in Europe, Asia, Australia, parts of Latin America, and its often the case that a DVB standard is subject of a mandate of a law because it’s often considered by regulators to be in the public interest to require that everyone who build a digital television receiver or transmitter will build it to some specifications that you can be sure that when you turn on your tv you can receive a tv broadcast, after all it’s your airwaves and mine that are used by broadcasters to transmit. They take them in trust from us and we should be able to see what they transmit on electromagnetic spectrum.
So you have regulatory mandates for digital television being the norm and you have the digital televion standards body creating a DRM standard that will be part of the digital television standard. When you put these things together you have a sixteen-car-pile-up on the motorway, you have a terrible disaster in the authing which is a mandate for DRM.