Cory Doctorow vs DRM, Part II

26 Jan 2006

Continued from part I, this is the second part of Cory Doctorow’s 40-minute speech at the MUHKA in Antwerp, on Tuesday January 24th. Let’s tune in around the 20th minute.

“So let’s talk about DVB and CPCM works. DVB is a private industry consortium, it costs 10.000 Euros a year to be a member, you have to be either a manufacturer, or an academic, or a broadcaster or a film company to join. EFF is a member, my former employer is a member. We represent a manufacturer, an open source manufacturer called GNU Radio and the meetings are subject to a kind of non-disclosure agreement, so you can’t really talk about what’s said in the meetings until DVB decides to go public with it. This is essentially a secret law making process that’s under way there. Then when we’re talking about technical standards, it’s not such a big deal, but as soon as we’re talking about sweeping restrictions, changes to the way the copyright bargain works, it becomes very great indeed.

Warner Brothers, who were represented there – the representative from Warner Brothers is also the chairman of the compliance ad hoc group in the DVB/CPCM group- gave a presentation last year in March in Dublin at the DVB World Conference (.pdf, 138kb) in which they promised that they would see regulatory mandates across Europe, forcing CPCM, and these would mirror the regulatory mandates that forced the broadcast flag in America. This was a proposal that said: ‘people who build digital television technologies should first get the permission of the entertainment industry for all the features that these technologies would have. Now remeber in 1967 to 1984, the movie studios claimed that the VCR would put them out of business, and they sued and they lobbied very hard to get the VCR prevented from being introduced into the market. In fact in 1982, Jack Valenti the mouth piece for the Motion Picture Association went to a congressional hearing at UCLA, and said that the VCRs is to the American film industry as the Boston strangler is to women home alone, as a serial killer. And promised that this would be the death of his industry. And at his exit interview just a couple of years ago when he retired he said he never regretted a word of it, that he still believes that the VCR is dangerous to the entertainment industry and should be banned, and that the brand new motion picture association building in Washington D.C. is called the Jack Valenti building. This is not an industry that is in any position to tell us which feature should or shouldn’t be allowed in digital television.

What CPCM does is specify a wide range of restrictive flags that can be set for digital television programs and a compliance regime that manufacturers will have to adhear to in order to be in compliance with the standard. And that compliance regime basically says what they have to do when they need these flags and how they have to design their technology. Now I’ll talk a little about the specific restrictions, but those aren’t the important pieces here. The important piece here is that we’re moving from a world, potentially, where the thing that determines whether or not your device is allowed in the market and succeeds, is whether or not customers want it and are willing to spend money on it to a world where where the thing that determines whether your device is allowed in the market, is whether or not an entertainment executive says it should be. We’re moving to a world where the person who makes the record gets to design the record player.

Moreover, because the compliance regime specifies that everything in the technology has to be resistant to user modification, we will have for the first time, a strong motivation for the companies that make technology components like hard drives, video cards, tuner cards and so, will have a strong motivation for those people to design their devices so that users can’t modify them, so that open source drivers can’t be written for them. So the entire PC ecosystem starts to ripple from this, as we see manufacturers building their tuner cards, their video cards, their hard drives and so on, to resist free and open source software, because they’re afraid that should these components end up with free and open source drivers, that they will no longer be useful or lawful for use with television technologies.

And finally, as digital television migrates to the PC, this starts to put PCs in the realm of a regulator. We suddenly go from a regulator doing nothing but assuring themselves that a TV works as it is advertised to assuring themselves that PCs are programmed and designed in a way to protect the entertainment industry’s business model that suddenly becomes incumbent upon technology makers who make general purpose technologies to assure themselves that what they build doesn’t unduely disrupt some other industry’s business models.

The restrictions themselves are in fact quite scary for all of that. The thing that gets me most is something called ‘authorized domain’. The idea of authorized domain is the idea that you can flag a piece of content so that it can only be consumed by devices owned by a single household. Sounds reasonable enough on the surface. But it raises this question: ‘What’s a household? If you’re from a diaspora family where part of your family is in the developing world, and part of your family is here in the developed world maybe working as a daylabour, as an au-pair… are you part of the kind of family that this system will recognize? Is it likely that these engineers meeting in closed-door meetings and smoke-filled rooms at the EBU in Geneva have countenanced ‘that’ sort of family arrangement? Can they design a computer technology that can distinguish between a family with far flung members all over the world and just a group of people who are sharing media indiscriminately? Can they distinguish between a situation in which a bunch of neighbors who are part of the same household and all live on the same floor of an appartment building are trying to share media and a situation in which a communal household merges, like when you put your father in an old folks home and he wants to take his media with him when he checks in? Can they distinguish between a person who goes from house to house sharing his content and the child of a divorced couple that goes back and forth once a week per the custody arrangement and tries to share the media? Now I’ve raised this question and they said ‘we saw this problem in other fora, we have for example Windows XP activation’. Sometime you try to activate a copy of Windows XP and it looks like you’re trying to do something dodgy and XP says: ‘call this number to confirm that what you’re doing isn’t dodgy’. Well that’s fine when you’re writing a copy of Windows, but since when does watching television require that you ring up a call center and explain the circumstances of your parent’s divorce. I think it’s a terrible thing to expand the copyright monopoly into.

It’s one thing to say ‘I get to say who gets to copy my books’ it’s another thing for me to say: ‘I get to tell you what you’re family is allowed to consist of’. There are other areas in which we’ll see restrictions, more kind of easily understood restrictions like the number of screens that a show is allowed to be on, the duration that you’re allowed to store a show for, the number of viewings that you’re allowed to have and how far away from the receiver your screen is allowed to be. Today you can buy simple devices like SCART that will wirelessly transmit your SCART signals from one room to the other. I do this at home, I’ve got a cable box in one room and on another floor I’ve got a television I wirelessly transmit to, rather than stringing the wire up through the floor. Now when you hear the standards body people talk about this, the entertainment people talk about this, what they say is that watching a show that’s been received in one room while you sit in another room has value. And if it has value we should be able to charge money for it. This is the ‘IF VALUE THEN RIGHT’ theory. If there’s a value to something, someone else has a right to that value. They’re correct, there is value to being able to watch a show that’s being received in one room while you’re sitting in another room. We can measure that value: it’s the price that I’m willing to spend on the wireless device that retransmits from one place to another. What the standards propose us to do, what this law propose us to do is expropriate that value from you and me, with whom it currently vests, and to give it to the entertainment industry who can then sell it back to us. They characterize this as a new business model. There’s kind of an internet-ready business model for this and I call it the urinary-tract infection business model (edited: hope I got it right). It used to be that you were sitting in your living room and there were a million things that you could do freely and easily. You could change the channel, you could pause, you could rewind, you could plug in more screens, take fewer screens, you could watch a show in one room that was being received in another room… it was all very free and easy. And now every button of your remote has a price tag. It comes in slow, painful drips. It’s not a business model that I want to be a customer of.

So every government in Europe is trying to figure out how to create a digital television transition, how to convince people like you and me to buy digital televisions or digital television receivers and get rid of the analogue televisions. There’s a pretty good reason for this. Right now, every government in Europe is broadcasting, has set up broadcasting licences to broadcast the same shows in two different ways. One is analogue, one is digital. The spectrum that’s being used for analogue television transmission could be reclaimed and used for mobile phones, used for licenced wireless, auctioned and sold out to taxi drivers and there are numeral ways in which that value could be reclaimed. It’s certainly not in the public interest to have all this prime spectral real estate, this electomagnetic real estate sitting out there fallow. It’d be great of we could get people to buy new digital televisions. The entertainment industry’s story, again and again, is if we can give people good enough tv shows, that are ready for digital, then they’ll go out and buy digital televisions. That what people want is high quality content. There’s a technical matter, it doesn’t seem to be working. This is what they pursued in America. It’s just not a big winner, America is really lagging the digital television transition. In the UK they tried something else. In the UK what they tried to do is giving people free tv. That turns out to be very succesful. What they’ve done is multiplexing, that is to say they’ve putten more shows into one signal. They’re multiplexing 3 or 4 standard definition shows in every one of those high definition channels. And then they’re selling freeview boxes for 70 pounds or even less. And these freeview boxes give you 30 free channels of television and 20 free channels of audio forever. You buy one box and you never have to pay a cable bill again. Unsurprisingly, that has convinced a lot of people to buy digital television boxes and to get rid of their analogue sets.

In America we killed the broadcast flag. We killed it in a couple of ways, but the key insight that we had that made the broadcast flag go away in America is that no law maker wants to be remembered as the elective representative who killed television. There’s no surer way to convince Americans to vote for someone else than disrupt their TVs. It seems to be a truism that lawmakers have taken to heart. So when the broadcast flag was proposed the initial idea was that a lawmaker from Louisiana, a guy named Billy Tauzin, would make a law that would require the Federal Communications Commision which is the regulator, to inact the broadcast flag regulation. It woudl give them the explicit jurisdiction to become kind of ‘kings of devices’ and regulators of device characteristics. Now as we made a bigger and bigger statement about what was happening with this broadcast flag, this lawmaker’s enthusiasm for making this law got smaller and smaller and smaller. And eventually when they deliverd their report, which consisted of 20 pages of recommendations, and 200 pages of objections, this lawmaker got cold feet and said: I’m not going to make a law. Instead he sent a letter to the commisioner of the FCC saying: I think you’ve already got the jurisdiction, you don’t need my help. Go ahead and make the regulation without me. I’m not going to be the lawmaker who broke (edited: couldn’t find adverb) TVs. And the FCC did indeed make this regulation. Being the regulators, they lost concern with what voters think of them. They know that they’ll be home when the next party takes office and that they’ll move to a position in the industry. So they went ahead and enacted this regulation. But what came as a consequence of enacting this regulation was that we were able to sue, to asks the courts to determine whether or not that had this jurisdiction and the courts and the courts unsurprisingly said ‘No, they don’t! We don’t let the broadcast regulator tell you how you can design your PC, that’s not what they’re there for.
If you guys want to make this kind of regulation, you’ve got to go and get a law made, in support of it’.

Now the studios had a hard time finding a lawmaker that was willing to make that kind of law. And so what we saw was a lot of very sneaky lawmaking, a lot of people tacking to the broadcast flag law to the end of a budget balancing bill. And we just kept a very close eye on this stuff, and we sent lots and lots of letters from lots and lots of people, voters, to lawmakers saying ‘we see what you’re up to, we don’t like it’ and over and over again these things just kept getting withdrawn.

In the Senate they’ve just introduced the Digital Content Protection Act, the DCPA, this suicidal senator has introduced it. It contains the broadcast flag, it contains the broadcast flag for radio and it governs the characteristics of any device that can receive a signal after it’s been received by a radio or television. So that is to say your iPod suddenly becomes the subject of regulations. Well it’s a pretty amazing idea and again I think we’re going to win.

In order to win this fight in Europe, we need to get involved with domestic European civil liberties organizations as well as the EFF, which has a presence here in Europe and does some activism here. As you’ve heard I’ve spent two years here working on this, there’s now another guy who’s working on this digital television stuff. But there’s also a lot of ‘made in Europe’ organizations as Creative Commons Brussels, there’s Bits Of Freedom in the Netherlands, there’s the Choas Computer Club in Germany, there’s ORG in the UK, there’s Digital Ireland in Ireland and everywhere you go in Europe you see these digital liberties movements cropping up, these digital rights movements cropping up and it’s because what’s happened is that all of the stuff that’s used to matter in the real world, has started to matter online as well. The more time we spend online, the more vital our interactions become online, the more incursions into our online liberty start to matter as much as the incursions into our offline liberties and the more we see people congregating around these issues.

Bits are never going to get harder to copy. Ever. We are at this moment experiencing the hardest bits will ever be to copy for the rest of time. Bits are only going to get easier to copy from hereon end. If there is a business that relies on its bits not getting copied, that business will either have to change or die. Every year we hear about how there are fewer CDs being sold, or fewer books being sold, or fewer other packages that are traditionally used to deliver bits being sold. And it’s unsurprising. It would be surprising it were the inverse. CD sales are never going to go up again, in the same way that oatbag and horseshoe sales will never go up again. We’ve stabilized the amount of horseshoes and oatbags that will be sold year on year. And we’ll shortly stabilize the number of CDs, and we’ll sell them like oil paintings, to a very small number of people who are interested in acquiring them. But we’ve reached the end of a life span for platters that deliver bits. Bits are here to be copied, and bits will continue to be copied, and business models need to start embracing copying.

I’ve done that with my own book. My first novel Down and Out in the Magic Kingdom was released just over three years ago on January 9th, 2003. It was the first novel released under what’s called a creative common license, these are licenses that encourage people to non-commercially share works. I released it then because I realize that as a novelist my biggest threath to my livelyhood wasn’t piracy, it was obscurity. Of all the people who were potential customers from my books, the reason that the main number of them would fail to buy them, wasn’t that someone would give them a free electronic copy. It was that they never heard of it. And by making my books available electronically, they would spread a lot further, and I’ve done this with three novels now and a short story collection. My first book has been downloaded now 650.000 times from my website, and an oldtold number of times from other people’s websites. And it’s in its sixth physical printing. It’s just been out in Spain, it’s coming out in Japan, there’s a French edition coming and so on. Giving the book away has sold lots more copies. I’ve found a copy-friendly business model. And it’s a different business model from the one that we had before. Now it’s true I think, that eventually we’ll reach a point where electronic books don’t sell print books, where instead of being a complementary good, or having the print book and the electronic book at the same time makes the print book more valuable and the electronic book more valuable, before reaching a point where having an electronic book is all that you really want in the main. That’ll be the convergence of two things, one is the fact that screens are getting better and the other is that we’re getting less discriminating about what we read off the screens. We have a generation of people who spend every hour they can find reading off the screens. Those people will always be comfortable reading off the screens and if there’s a literary form or a narrative form that doesn’t lend itself to screens, those people just won’t consider, they’re consumer-based for that kind of work.

I feel that I’ve got to figure out now, what the business model is going to be then. I’ve got to make hay when the sun is shining. I’ve got to give away books to sell books today, but also give away books to figure out how to sell books tomorrow, when physical books are no longer things that people are really willing to spend money on. And the way to do that is by watching what people do when you give them electronic text. There’s this nice confluence of the thing that sells books today and the thing that will sell books tomorrow. I don’t think you can learn anything about how people will use digital media by giving it to them in restricted wrappers. If you give someone a book in a restricted wrapper, all that they can do with it is the stuff that you thought of. They’ll never surprise you. So those of you who are engaged in avid copying, and if you’re an internet user there’s at least a 50 percent chance, that you’re engaged to very avid copying, it may feel sometimes that what you’re doing is illegal or immoral or entreating to the downfall of society. It’s quite possible that what you’re doing is illegal. It’s unsurprising to hear that copyright law hasn’t kept pace with technology. After all, all copyright law is is a regulatory system for copying and distributing works, these are technological activities. And if you sat down as a lawmaker and tried to imagine every possible thing you might some day do with a work before writing your law and making sure that all things were countenanced and included in the law, you’d never finish writing. The law would never ship.

So of course ‘new uses’ aren’t imagined in old laws. But what you’re doing is something that’s endemic to a world of bits. What you’re doing when you copy, is something that everyone will be doing shortly. And that businesses that can’t survive in the face of it will fade away as a result of it. It may be that traffic laws didn’t allow for automobiles or horseless carriages, or iron horses -the locomotive – when they were invented, it may be that the laws invented for horse and buggies didn’t countenance those, it may be that everyone who went about in one of those was breaking the law technically. But the outcome was a system that legalized those, was a system that embraced those, wasn’t a system that sought to find a way to ensure that horseshoes would always be sold by requiring four horseshoes per horsepower of a locomotive to be welded to the engine.”

So that was what Cory had to say to us on tuesday night.

The guys over at have put up a podcast of this speech, of which I made this transcript. You can download it over there.

Also related : Stitch & Split, EFF, Constant vzw

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Posted by Miel Van Opstal in Ethics, Interviews, Technology, Thoughts


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