more on Summerized -- Mossberg: Media Companies Go Too Far in Curbing Consumers' Activities

[David Farber <dave () farber net>]

Begin forwarded message:

From: Seth Johnson <seth.johnson () RealMeasures dyndns org>
Date: October 25, 2005 4:06:56 AM EDT
To: dave () farber net
Cc: Ip Ip <ip () v2 listbox com>
Subject: Re: [IP] more on Summerized -- Mossberg: Media Companies Go  
Too Far in Curbing Consumers' Activities



The best thing would be to just stop putting policy related to
TPMs under the umbrella of copyright policy.  Really, what's
being attempted with "DRM" and TPM is a weird effort to do
something less than actual publishing of information.  The theory
that controlling public uses of published information is a
natural function of copyright, is really, really specious, to put
it mildly.

It isn't the work, ultimately, that we want out of copyright;
it's the shared (published) information, the knowledge and
understanding and facts and ideas which promote the progress of
science and the useful arts.  The information within the work,
when we make a distinction from original expression, is free to
be used.  That this is the case is not a mere legal artifice; it
is in the intrinsic nature of publishing any information at all.
It's nothing new; it's not a result of the digital revolution;
it's a result of the nature of information, regardless of the
medium or the form in which it is represented -- and this has
always been the case, and will always be the case.

Distinguishing copyright and private interest uses of TPMs lets
you start sorting things out and begin articulating a sensible
policy that lives in the real world.  You want to control a
transaction, use access control.  That's more of a private
interest concept than copyright policy is designed to accomplish.

You want to set special terms for exactly what sort of
transaction is taking place when someone obtains a work from you,
then we need to confront those policy implications forthrightly.
But what's going on there isn't really copyright: even though
TPMs may be strengthened by enforcement under the misnamed
Digital Millennium Copyright Act, the terms that are imposed in
these transactions are not really in principle valid under
copyright -- and on the other hand they're often not really good
models of valid, consensual contractual arrangements.

Now, to look at it from that perspective, contractual
arrangements that go beyond transfers of specific exclusive
rights that authors hold, are about private interest and they
also happen to be consensual; whereas authors may exercise their
exclusive rights under copyright even without a consensual
contract.  There's a deep mismatch there.  The rights that we
choose to give to authors under a copyright policy appropriate
for the digital age have to be considered in this light.

The confusion evaporates after you recognize these distinctions
between copyright and attempts to impose prior restraints on how
others can use the information contained within expressive works.

I might add, that clarifying the above is completely inconsistent
with a basic purpose behind the various attempts to promulgate
the notion of "DRM": the idea being to mix copyright policy with
private interest perspectives until something very, very
different from valid copyright can be established, and a new
precedent can be set, that will hopefully trump traditional
jurisprudence.  If this cannot be accomplished through laws
enacted by representatives directly accountable to their
constituencies, then the intention is to do so through
international treaties enacted by unelected representatives.


Seth Johnson


David Farber wrote:

> Begin forwarded message:
>
> From: TClaburn () cmp com
> Date: October 20, 2005 11:10:25 AM EDT
> To: dave () farber net
> Subject: Re: [IP] Summerized -- Mossberg: Media Companies Go Too Far
> in Curbing Consumers' Activities
>
> I agree wholeheartedly with Walter Mossberg, though I believe he
> misses the mark
> on this point:
>
> "I believe Congress should rewrite the copyright laws to carve out a
> broad
> exemption for personal, noncommercial use by consumers, including
> sharing small
> numbers of copies among families."
>
> While it would be helpful to have fair use codified, consumers
> already have
> these rights in theory. But they cannot exercise them because of
> technical
> protection methods/digital rights management.
>
> If the law is to be of assistance here, it needs to limit DRM. And
> that's not
> likely to happen until Congress revisits the Digital Millennium
> Copyright Act,
> which prohibits the circumvention of DRM technology. As Lawrence
> Lessig has
> suggested, code is law.
>
> Thomas Claburn
> InformationWeek
> http://www.lot49.com
>
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--

RIAA is the RISK!  Our NET is P2P!
http://www.nyfairuse.org/action/ftc

DRM is Theft!  We are the Stakeholders!

New Yorkers for Fair Use
http://www.nyfairuse.org

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