R. A. Hettinga on 19 Jan 2001 20:14:37 -0000

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[Nettime-bold] What's Wrong With Content Protection

--- begin forwarded text

To: cryptography@c2.net
Cc: Ron Rivest <rivest@theory.lcs.mit.edu>, gnu@toad.com
Subject: What's Wrong With Content Protection
Date: Thu, 18 Jan 2001 17:06:07 -0800
From: John Gilmore <gnu@toad.com>
Sender: owner-cryptography@c2.net

Ron Rivest asked me:
> I think it would be illuminating to hear your views on the
> differences between the Intel/IBM content-protection proposals
> and existing practices for content protection in the TV
> scrambling domain.  The devil's advocate position against your
> position would be: if the customer is willing to buy extra, or
> special, hardware to allow him to view protected content, what is
> wrong with that?

There is nothing wrong with allowing people to optionally choose to
buy copy-protection products that they like.

What is wrong is when people who would like products that simply
record bits, or audio, or video, without any copy protection, can't
find any, because they have been driven off the market.  By
restrictive laws like the Audio Home Recording Act, which killed the
DAT market.  By "anti-circumvention" laws like the Digital Millennium
Copyright Act, which EFF is now litigating.  By Federal agency
actions, like the FCC deciding a month ago that it will be illegal to
offer citizens the capability to record HDTV programs, even if the
citizens have the legal right to.  By private agreements among major
companies, such as SDMI and CPRM (that later end up being "submitted"
as fait accompli to accredited standards committees, requiring an
effort by the affected public to derail them).  By private agreements
behind the laws and standards, such as the unwritten agreement that
DAT and MiniDisc recorders will treat analog inputs as if they
contained copyrighted materials which the user has no rights in.  (My
recording of my brother's wedding is uncopyable, because my MiniDisc
decks act as if I and my brother don't own the copyright on it.)

Pioneer New Media Technologies, who builds the recently announced
recordable DVD drive for Apple, says "The major consumer applications
for recordable DVD will be home movie editing and storage and digital
photo storage".  They carefully don't say "time-shifting TV programs,
or recording streaming Internet videos", because the manufacturers and
the distribution companies are in cahoots to make sure that that
capability NEVER REACHES THE MARKET.  Even though it's 100% legal to
do so, under the Supreme Court's _Betamax_ decision.  Streambox built
software that let people record RealVideo streams on their hard disks;
they were sued by Real under the DMCA, and took it off the market.
According to Nomura Securities, DVD Recorder sales will exceed VCR
sales in 2004 or 2005, and also exceed DVD Player-only sales by 2005.
(http://www.kipinet.com/tdb/1000/10tdb04.htm)  So by 2010 or so, few
consumers will have access to a recorder that will let them save a
copy of a TV program, or time-shift one, or let the kids watch it in
the back of the car.  Is anyone commenting on that social paradigm
shift?  Do we think it's good or bad?  Do we get any say about it at

Instead, consumers will have to pay movie/TV companies over and over
for the privilege of time-shifting or space-shifting.  Even if they
have purchased the movie, and it's stored at home on their own
eqiupment, and they have high bandwidth access to it from wherever
they are.  This concept is called "pay per use".  It can't compete
with "You have the right to record a copy of what you have the right
to see".  These companies can't eliminate that right legally, because
it would violate too many of the fundamentals of our society, so they
are restricting the technology so you can't EXERCISE that right.  In
the process they ARE violating the fundamentals on which a stable and
just society is based.  But as long as society survives until after
they're dead, they don't seem to care about its long-term stability.

What is wrong is when companies who make copy-protecting products
don't disclose the restrictions to the consumers.  Like Apple's recent
happy-happy web pages on their new DVD-writing drive, announced this
month (http://www.apple.com/idvd/).  It's full of glowing info about
how you can write DVDs based on your own DV movie recordings, etc.
What it quietly neglects to say is that you can't use it to copy or
time-shift or record any audio or video copyrighted by major
companies.  Even if you have the legal right to do so, the technology
will prevent you.  They don't say that you can't use it to mix and
match video tracks from various artists, the way your CD burner will.
It doesn't say that you can't copy-protect your OWN disks that it
burns; that's a right the big manufacturers have reserved to
themselves.  They're not selling you a DVD-Authoring drive, which is
for "professional use only".  They're selling you a DVD-General drive,
which cannot record the key-blocks needed to copy-protect your OWN
recordings, nor can a DVD-General disc be used as a master to press
your own DVDs in quantity.  These distinctions are not even glossed
over; they are simply ignored, not mentioned, invisible until after
you buy the product.

It isn't just Apple who is misleading the consumer; it's epidemic.
Sony portable mini-disc recorders only come with digital INPUT jacks,
never digital OUTPUTS.  Sound checks in -- but only checks out in
low-quality analog formats.  Intel touts the wonders of their TCPA
(Trusted Computing Platform Architecture).  You have to read between
the lines to discover that it exists solely to spy on how you use your
PC, so that any random third party across the Internet can decide
whether to "trust" you -- the owner.  TCPA isn't about reporting to
YOU whether you can trust your own PC (e.g. whether it has a virus),
it doesn't include that function.  It exists to report to record
companies about whether you have installed any software that lets you
make copies of MP3s, or any free software to circumvent whatever
feeble copy-protection system the record company uses.  Intel is
pushing HDCP (High Definition Content Protection) which is high speed
hardware encryption that runs only on the cable between the computer
and its CRT or LCD monitor.  The only signal being encrypted is the
one that the user is sitting there watching, so why is it encrypted?
So that the user can't record what they can view!  If the cable is
tampered with, the video chip degrades the signal to "analog VCR

Intel is also pushing SDMI and CPRM (Content Protection for Recordable
Media) which would turn your own storage media (disk drives, flash
ram, zip disks, etc) into co-conspirators with movie and record
companies, to deny you (the owner of the computer and the media) the
ability to store things on those media and get them back later.
Instead some of the stored items would only come back with
restrictions wired into the extraction software -- restrictions that
are not under the control of the equipment owner, or of the law, but
are matters of contract between the movie/record companies and the
equipment/software makers.  Such as, "you can't record copyrighted
music on unencrypted media".  If you try to record a song off the FM
radio onto a CPRM audio recorder, it will refuse to record or play it,
because it's watermarked but not encrypted.  Even when recording your
own brand-new original audio, the default settings for analog
recordings are that they can never be copied, nor ever copied in
higher fidelity than CD's, and that only one copy can be made even if
copying is ever authorized (if the other restrictions are somehow
bypassed).  Intel and IBM don't tell you these things; you have to get
to Page 11 of Exhibit B-1, "CPPM Compliance Rules for DVD-Audio" on
page 45 of the 70-page "Interim CPRM/CPPM Adopters Agreement",
available only after you fill out intrusive personal questions after
following the link from http://www.dvdcca.org/4centity/ .  All Intel
tells you that CPPM will "give consumers access to more music"
(http://www.intel.com/pressroom/archive/releases/aw032300.htm).  Lying
to your customers to mislead them into buying your products is wrong.

What is wrong is when scientific researchers are unable to study the
field or to publish their findings.  Professor Ed Felten of Princeton
studied the SDMI "watermarking" systems in some detail, as part of a
public study deliberately permitted by the secretive SDMI committee,
so they could determine whether the public could crack their chosen
schemes.  (SDMI would not allow EFF to join its deliberations, saying
that we had no legitimate interest in the proceedings because we
weren't a music company or a manufacturer.  There are no consumer or
civil rights representatives in the SDMI consortium.)  Prof. Felten
was in the New York Times last week, saying the SDMI people and
Princeton's lawyers are now telling him that he can't release his
promised details on what was wrong with these watermarking systems,
because of the Digital Millennium Copyright Act.  It's OK to tell the
SDMI companies how easy it is to break their scheme, but it isn't OK
to tell the public or other scientific researchers.

What is wrong is when competitors are unable to build competing
devices or software, vying for the favor of the consumers in the free
market.  Instead those devices are banned or threatened, and that
software is censored and driven underground.  Such as the open-source
DeCSS and LiViD DVD player programs.  Such as DVD players worldwide
that can play American "Region 1" DVDs.  EFF spent more than a million
dollars last year in defending the publisher of a security magazine,
and a Norwegian teenager, from movie industry attempts to have them
censored and jailed, respectively, for publishing and writing
competing software that lets DVDs be played or copied but does not
follow the restrictive contracts that the movie studios imposed on
most players.  The movie studios spent $4 million on prosecuting the New
York case alone.  Few or no manufacturers are willing to put ordinary
digital audio recorders on the market -- you see lots of MP3 *players*
but where are the stereo MP3 *recorders*?  They've been chilled into
nonexistence by the threat of lawsuits.  The ones that claim to
record, record only "voice quality monaural".

What is wrong is when the controls that are enacted to protect the
rights reserved under copyright are used for other purposes.  Not to
protect the existing rights, but to create new rights at the whim of
the copyright holder.  Movie companies insisted on a "region coding"
system for DVDs, because they would make less money if DVD movies were
actually tradeable worldwide under existing free-trade laws.  (They
couldn't charge high theatre ticket prices if the same movie was
simultaneously available on DVDs, and they couldn't combine the ad
campaigns of the theatres and the DVDs if they waited a long time
between releasing it to theatres and releasing it to DVDs.)  This
system results in the situation where a consumer can buy a DVD player
legally, buy a DVD legally, and put the two together, and the movie
won't play.  The user has every legal right to view the movie, but it
won't play, because if it did, movie companies might make less money.
Similar controls exist in DVDs to prevent people from fast-forwarding
past the ads or those nonsensical "FBI Warnings".

Microsoft built some deliberately incompatible protocols into Windows
2000 so that competing Unix machines could not be used as DNS servers
in some circumstances.  Microsoft released a specification but only
under an encrypted file format that claimed to require that readers
agree not to use the information to compete with them.  When someone
decrypted the trivial encryption WITHOUT agreeing to the terms,
Microsoft threatened to use the DMCA to sue Slashdot, the popular
free-software news web site, who published the results.  (Luckily for
us, Slashdot has a backbone and said "go ahead, we'll defend that
suit" and Microsoft chickened out.)  Copyright doesn't grant the right
to prevent competition, or to restrict global trade -- but somehow the
legislation that was enacted to protect copyrights is being used to do
just those things.

What is wrong is when social policy is created in smoke-filled back
rooms, between movie/record company executives and computer company
executives, not by open public discussion, by legislatures, and by
courts.  The CPRM specification, for example, allows a distributor of
a bag of bits (who has access to software with this capability) to
decide that future recipients will not be permitted to make copies of
that bag of bits.  Or that two copies are permitted, but not three.
This policy is not legally enforceable, it was not created by law.
The law says something different.  But the policy will be enforced by
equipment built by all the major manufacturers, because they will be
sued by the movie/record companies if they dare to build interoperating
equipment that lets consumers make THREE copies, or copies limited only
by their legal rights.  Is it unexpected that such back-room policies
end up favoring the parties who were in the room, at the expense
of consumers and the public?

What is wrong is when the balance between the rights of creators and
the rights of freedom of speech and the press is lost.  Because any
increase in the rights of creators is a DECREASE in the public's right
of free speech and publication.  Whenever copyrights are extended, the
public domain shrinks.  The right of criticism, the right to dispute
someone else's rendition of the truth, is damaged.  The First
Amendment gives an almost absolute right to publish; the Copyright
clause gives a limited right to prevent publication by others.  Any
expansion of the right to prevent publication diminishes the right to
publish.  For example, nothing that was created after 1910 has entered
the public domain, because as the years went by, the term of copyright
kept getting extended.  But the copy-rights created by technological
restrictions are not even designed to end.  There is nothing in the
SDMI or CPRM spec that says, "After 2100 you will be permitted to copy
the movies from 1910".

What is wrong is that a tiny tail of "copyright protection" is wagging
the big dog of communications among humans.  As Andy Odlyzko pointed
out, (http://www.research.att.com/~amo/doc/eworld.html, see "Content
is not king" and "The history of communications and its implications
for the Internet"), "The annual movie theater ticket sales in the
U.S. are well under $10 billion.  The telephone industry collects that
much money every two weeks!"  Distorting the law and the technology of
human communication and computing, in order to protect the interests
of copyright holders, makes the world poorer overall.  Even if it
didn't violate fundamental policies for the long-term stability of
societies, it would be the wrong economic decision.

What is wrong is that we have invented the technology to eliminate
scarcity, but we are deliberately throwing it away to benefit those
who profit from scarcity.  We now have the means to duplicate any kind
of information that can be compactly represented in digital media.  We
can replicate it worldwide, to billions of people, for very low costs,
affordable by individuals.  We are working hard on technologies that
will permit other sorts of resources to be duplicated this easily,
including arbitrary physical objects ("nanotechnology"; see
http://www.foresight.org).  The progress of science, technology, and
free markets have produced an end to many kinds of scarcity.  A
hundred years ago, more than 99% of Americans were still using
outhouses, and one out of every ten children died in infancy.  Now
even the poorest Americans have cars, television, telephones, heat,
clean water, sanitary sewers -- things that the richest millionaires
of 1900 could not buy.  These technologies promise an end to physical
want in the near future.

We should be rejoicing in mutually creating a heaven on earth!
Instead, those crabbed souls who make their living from perpetuating
scarcity are sneaking around, convincing co-conspirators to chain our
cheap duplication technology so that it WON'T make copies -- at least
not of the kind of goods THEY want to sell us.  This is the worst sort
of economic protectionism -- beggaring your own society for the
benefit of an inefficient local industry.  The record and movie
distribution companies are careful not to point this out to us, but
that is what is happening.

If by 2030 we have invented a matter duplicator that's as cheap as
copying a CD today, will we outlaw it and drive it underground?  So
that farmers can make a living keeping food expensive, so that
furniture makers can make a living preventing people from having beds
and chairs that would cost a dollar to duplicate, so that builders
won't be reduced to poverty because a comfortable house can be
duplicated for a few hundred dollars?  Yes, such developments would
cause economic dislocations for sure.  But should we drive them
underground and keep the world impoverished to save these peoples'
jobs?  And would they really stay underground, or would the natural
advantages of the technology cause the "underground" to rapidly
overtake the rest of society?

I think we should embrace the era of plenty and work out how to
mutually live in it.  I think we should work on understanding how
people can make a living by creating new things and providing
services, rather than by restricting the duplication of existing
things.  That's what I've personally spent ten years doing, founding a
successful free software support company.  That company, Cygnus
Solutions, annually invests more than $10 million into writing
software, giving it away freely, and letting anyone modify or
duplicate it.  It funds that by collecting more than $25 million from
customers, who benefit from having that software exist and be reliable
and widespread.  The company is now part of Red Hat, Inc -- which also
makes its living by empowering its customers without restricting the
duplication of its work.  It's no coincidence that the open source,
free software, and Linux communities are among the first to become
alarmed at copy protection.  They are actively making their livings or
hobbies out of eliminating scarcity and increasing freedom in the
operating system and application software markets.  They see the real
improvement in the world that results -- and the ugly reactions of the
monopolistic and oligopolistic forces that such efforts obsolete.

Converting the whole world to operate without scarcity is a huge task.
Such a large economic shift would take decades to spread through the
entire world economy, making billions of new winners and new losers.
We will be extremely lucky if by 2030 we are *prepared* to end
scarcity without massive social turmoil, including riots, civil
unrest, and world war.  If we are to find a peaceful path to an era of
plenty, we should be starting HERE AND NOW, transforming the
industries we have already eliminated scarcity in -- text, audio, and
video.  Companies that can't adjust should disappear and be replaced
by those who can.  As these whole industries learn how to exist and
thrive without creating artificial scarcity, they will provide models
and expertise for other industries, which will need to change when
their own inefficient production is replaced by efficient duplication
ten or fifteen years from now.  Relying on copy-protection now would
send us in exactly the wrong direction!  Copy protection pretends that
the law and some fancy footwork with industrial cartels can maintain
our current economic structures, in the face of a hurricane of
positive technological change that is picking them up and sending them
whirling like so many autumn leaves.

This may be a longer discussion than you wanted, Ron, but as you can
see, I think there are a lot of things wrong with how copy protection
techologies are being foisted on an unsuspecting public.  I'd like to
hear from you a similar discussion.  Being devil's advocate for a
moment, why should self-interested companies be permitted to shift the
balance of fundamental liberties, risking free expression, free
markets, scientific progress, consumer rights, societal stability, and
the end of physical and informational want?  Because somebody might be
able to steal a song?  That seems a rather flimsy excuse.  I await
your response.

	John Gilmore
	Electronic Frontier Foundation

--- end forwarded text

R. A. Hettinga <mailto: rah@ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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