[DMCA-Activists] Re: Linus Torvalds on "digital rights management" in Linux kernel

[Seth Johnson]

Declan McCullagh posted via POLITECH:

> From: Linus Torvalds <address@hidden>
> Date: Wed, 23 Apr 2003 20:59:45 -0700 (PDT)
> To: Kernel Mailing List <address@hidden>
> Subject: Flame Linus to a crisp!
> 
> Ok,
>   there's no way to do this gracefully, so I won't even try. I'm going to
> just hunker down for some really impressive extended flaming, and my
> asbestos underwear is firmly in place, and extremely uncomfortable.
> 
>    I want to make it clear that DRM is perfectly ok with Linux!
> 
> There, I've said it. I'm out of the closet. So bring it on...

< SNIP >


Hi Declan,

Too much of the discussion regarding so-called "DRM" fails to make a key
distinction.

There are private interest issues for which cryptography serves very well,
and very appropriately.  These include local machine security, privacy,
anonymity, etc.

But when it comes to exclusive rights (copyright, patent) policy, we're
talking about public interest policy.  The exclusive rights clause of the
United States Constitution is extremely clear about this.

Exclusive rights are not determined by software or hardware, by whatever
mechanism.  They are not determined by authors and inventors.  They are not
determined by private contracts and licenses.

Exclusive rights are determined by Congress.  Congress ratifies a set of
exclusive rights that we are thereby empowered to dicker over.  But Congress
has the full power to articulate exclusive rights in whatever manner they
see fit and appropriate for a free society in the information age. 
Exclusive rights are not like natural rights in America.  We lose track of
this if we allow ourselves to become confused, mixing exclusive rights
policy issues with private interest issues.  Linus's posited example of
signing code or binaries to validate their integrity, doesn't address the
key issues.

Just as one example, DRM completely obliterates the fact/expression
dichotomy, an essential principle of American copyright jurisprudence, on
which the basic freedoms of the public depend.

The problem with "DRM" is the way the notion is used to enforce and
rationalize invalid ideas of exclusive rights.  Without the DMCA, "DRM"
would be laughed out of consideration any time the "RM" part of it was
attempted to be applied to copyright, simply because computers are tools for
processing facts and ideas, no less than original expression.  Copyright
doesn't cover information -- facts and ideas.  It covers the forms of
originality for which Congress grants exclusive rights -- but that does
*not* go so far as saying that we can't parse and make use of the
information *contained in* expressive works.  Being able to do so is
actually the whole reason why we provide exclusive rights to authors and
inventors.

The GPL is simply the most effective tool we have to assure freedom, a tool
that works extremely well given the failure of American institutions of law
of late, to recognize basic, absolutely foundational principles of our free
society.

Seth Johnson



-- 

DRM is Theft!  We are the Stakeholders!

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

[CC] Counter-copyright: http://cyber.law.harvard.edu/cc/cc.html

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