IP: Re: Thought crimes or better the joint plans of disk drive manufacturers and content providers to provide copy protection based on cryptographic means embedded within the drive technology

[Dave Farber <farber () cis upenn edu>]

> From: "Jonathan S. Shapiro" <shap () eros-os org>
> To: <farber () cis upenn edu>, <ip-sub-1 () majordomo pobox com>
> Date: Mon, 25 Dec 2000 12:07:31 -0500
>
> [Others: this note is in response to a discussion about the joint plans of
> disk drive manufacturers and content providers to provide copy protection
> based on cryptographic means embedded within the drive technology. The
> subject line is not of my choosing.]
>
> I think there is a great public confusion about what copyright means, and
> that the entire debate about the dangers of cryptographic disk drives is
> missing something important.
>
> Copyright has two purposes: (1) to allow an author to gain compensation for
> a work, and (2) to ensure that after an appropriate amount of time the work
> becomes public domain. As we think about the implications of cryptographic
> disk drives, it is important to remember that these technologies only
> address *half* of copyright. They allow a distributor to ensure that a
> copyrighted work is more difficult to steal. Unfortunately, by their very
> success, they ensure that the work will never be released as a public good.
> Cryptographic disk drives do not preserve copyright. They enforce something
> much much stronger.
>
> The content manufacturers and the disk drive makers are formulating a new
> contract with the viewing public. This contract does not protect the
> interests and rights of the public as copyright does, because it does not
> allow the content to be transferred into the public domain at the expiration
> of the copyright period. If the content providers have concluded that
> copyright provides inadequate protection, they are certainly free to devise
> other means. However, they should not be simultaneously entitled to claim
> the benefit of copyright for their works.
>
> It is ironic to note that the manufacturers and the content providers have
> conspired to turn the history of copyright back almost five hundred years.
> Copyright traces its origin in English law to the charter of the Stationers
> Company in 1556. It came into law for the purposes of allowing the crown to
> suppress heresy and sedition by concentrating printing presses among a small
> number of businesses that could be threatened and coerced by the crown. The
> grant allows the Stationers to search out and destroy competing printing
> presses (literally to burn them to the ground) outside of other legal
> processes. This monopoly was strengthened "for the repressinge of suche
> greate enormyties and abuses as of late" by Queen Elizabeth in 1586 in the
> Decrees of the Starre Chamber. These repressive laws remained in force until
> the expiration of the censorship laws in 1694.
>
> The model for modern copyright law was the Copyright Act of 1709, 8 Ann. c.
> 19), which was fundamentally an anti-monopoly law. Modern copyright is based
> on *preventing* monopolies of exactly the kind that the content
> manufacturers are trying to establish.
>
> It is interesting to note that this occurs as software vendors are working
> to build similar monopolies in the form of software patent. In the area of
> software patents, the conflict between the rights of the public and the
> profits of the corporation is particularly painful and clear. There is no
> conceivable justification for a 20 year protection period in an industry
> whose product lifecycles are less than two years. In this arena, more than
> in any other, the introduction of patent robs the public of the ability to
> innovate in a timely fashion.
>
> Both debates have neglected a crucial and important point: the rights of the
> public.
>
> Patent and copyright as we know them today do not exist to protect the
> profits or the interests of corporations. This is commonly forgotten when
> people argue the merits. I hear people argue "company X has a *right* to
> make a reasonable profit on their inventions." Similarly, we are hearing
> that "company Y has a *right* to make a profit on their video, recording, or
> what have you. These are reasonable arguments, but they have very little to
> do with copyright or patent.
>
> The purpose of copyright and patent is to ensure that the protected
> intellectual property becomes a public good within some reasonably short
> period of time.
>
> Perhaps, before we agree too readily that either change is reasonable, we
> should stop to examine the history of repression and bloodshed that has
> surrounded similarly repressive laws in the past.
>
> You'll need a strong stomache. It isn't pretty.
>
>
> Jonathan S. Shapiro, Ph.D.
> Johns Hopkins University



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