[DMCA-Activists] Re: DC 7/17: Tactic

[Kevin Marks]

Lars, good points, and complementary to mine - you take a position 
closer to Lessig's; I can see some technological loopholes to exploit. 
Make sure you submit them into the comments form - they should end up in 
the record, and can be helpful for sympathetic congressmen.

The 'trust' issue is a strong one at the moment, as is 'transparency'. 
We need to emphasise these. Here's the full text of my

On Thursday, July 11, 2002, at 05:41 PM, LG wrote:

> [sorry for the excessive CC, but I don't know who subscribes to which 
> lists]
>
> From: "Kevin Marks" <address@hidden>
> > DRM destroys value, and is futile due to Church-Turing
>
> DRM could be "good enough" using the kind of system that TCPA/
> Palladium is considering (a TCB based on resonably tamper-proof
> hardware).
>
> The essential point, though, is that any DRM system that tries to
> restrict use of a work after download (i.e., not intitial [network] 
> access
> but local access) is built on the premise that the cleartext must be 
> kept
> in a sealed box.

But I can see the cleartext. I can thus record it, either by tapping 
into the chain digitally at some point, or as a last resort by going via 
a camera & microphone. The analog holes are my pupils and ears.

> > Markets don't work without trust (as Bush said yesterday). Trust your
> > customers.
>
> "Traditional" copyright law didn't really affect the average citizen. 
> If you
> buy a book, you can basically do anything you like with it. 
> "Traditional"
> (C) is mainly an issue for authors, publishers, libraries and tv/radio
> broadcasters. When we are moving to digital, copyright will become an
> important part of the rules governing what the citizen can - or can 
> not - do
> in their private home.

Which is what I am getting at with mediAgora. We need to make the chain 
of rights that is implicit and aggregated within a current publication 
implicit and fungible by editing, with clear ways to republish. You can 
be free as in speech and free as in market without being free as in 
beer - that is the point of what I am trying to describe there.

You can freely edit and republish works, as long as the creator gets 
paid what they would have for the unedited work. They can even cut you 
in a bit for promoting it if they want to.

Much more detail here:

http://mediagora.com


Here's the full text of my comments (their bits quoted):

>  SUMMARY: The United States Department of Commerce Technology 
> Administration (TA) announces a public workshop on digital 
> entertainment and its availability to consumers. The workshop will help 
> gather data on such issues as the status of technical standards that 
> provide the framework necessary to enable legitimate digital media 
> distribution and the present state of strengths, weaknesses and 
> availability of current and imminent technological solutions to protect 
> digital content, barriers that are inhibiting movies, music and games 
> from coming online.
>
> Topics to be addressed at the workshop include:
>
> The effectiveness of efforts to pursue technical standards or solutions 
> that are designed to provide a more predictable and secure environment 
> for digital transmission of copyright material;

This is odd phrasing - the TCP protocol provides a highly predictable 
way of transmitting copyright material, and end to end encryption can 
readily ensure that information is not intercepted in transit - this is 
used by millions of people every day for online banking, online 
purchasing and remote access to company networks.

What I surmise you are asking about here are so-called 'Digital Rights 
Management' schemes or DRM. Instead of discussing specific efforts, I'd 
like to point out general principles that apply to all such attempts.

Firstly, this is a misapplication of encryption. Encryption is for 
sending a secret between two trusted parties so that it cannot be 
intercepted by a third party. What DRM attempts instead is to make the 
remote device a trusted counterparty, as you don't trust the person 
owning it.

Secondly, there is a fundamental principle of computer science known as 
the Church-Turing thesis, which proves that any suitably powerful 
computer can exactly recreate the results of any other one. The 
implication of this is that any remote machine could be mimicking the 
correct responses, but still copying the data. These efforts are doomed 
to fail. If you talk to any DRM technologist, they will admit this, 
which is why their schemes provide for 'repudiation' and 
self-replacement.

Thirdly, encumbering the copyright material with digital locks and 
limitations makes it far less attractive - people like the freedom to 
read, listen, view and edit in the order and at the times they want, and 
will pay less for less convenient, technologically limited forms.

> Major obstacles facing an open commercial exchange of digital content;

As the President wisely said yesterday, you can't have a market without 
trust.

The major obstacle that an open commercial exchange faces is the fact 
that the publishing industries don't trust their customers, and that in 
many cases they have forfeited the trust of the creative artists they 
represent.

The second major obstacle is the cartelisation of existing media 
publishing with price fixing and discriminatory pricing.

The third obstacle is the difficulty of sending payments, though PayPal 
makes this less of an issue. The effort for the customer of keeping 
track of these payments and not being 'nickeled and dimed to death' 
should not be underestimated either.

> What a future framework for success might entail;

A future framework for success will entail building a marketplace based 
on trust, that does not discriminate against any creator or customer, 
and that rewards promoters for achieved sales. I have outlined just such 
a framework at http://mediagora.com

> Current consumer attitude towards online entertainment.

The notion of a 'consumer' is wrong here, as digital works are not 
consumed - they are copied as needed, but do not wear out.

If you examine the web, you will find that it is mostly composed of web 
pages by individuals - more than 2 billion of them. People entertain 
themselves by reading others pages and writing their own, filled with 
their thoughts, jokes, deeds and dreams, passing ideas from one to 
another, chatting in chat-rooms, playing games with one another, and 
sharing music they care about.

The attitude is that the whole world is only a few clicks away, and they 
won't be forced to watch advertisements any more.

In closing, I'd like to quote Thomas Jefferson:

"It would be curious... if an idea, the fugitive fermentation of an 
individual brain, could, of natural right, be claimed in exclusive and 
stable property. If nature has made any one thing less susceptible than 
all others of exclusive property, it is the action of the thinking power 
called an idea, which an individual may exclusively possess as long as 
he keeps it to himself; but the moment it is divulged, it forces itself 
into the possession of every one, and the receiver cannot dispossess 
himself of it. Its peculiar character, too, is that no one possesses the 
less, because every other possesses the whole of it. He who receives an 
idea from me, receives instruction himself without lessening mine; as he 
who lights his taper at mine, receives light without darkening me. That 
ideas should freely spread from one to another over the globe, for the 
moral and mutual instruction of man, and improvement of his condition, 
seems to have been peculiarly and benevolently designed by nature, when 
she made them, like fire, expansible over all space, without lessening 
their density in any point, and like the air in which we breathe, move 
and have our physical being, incapable of confinement or exclusive 
appropriation. Inventions then cannot, in nature, be a subject of 
property. Society may give an exclusive right to the profits arising 
from them, as an encouragement to men to pursue ideas which may produce 
utility, but this may or may not be done, according to the will and 
convenience of the society, without claim or complaint from anybody... 
The exclusive right to invention [is] given not of natural right, but 
for the benefit of society."

Kevin Marks, July 11th 2002
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http://mediagora.com  - encourage copying, expect payment