[DMCA-Activists] Comments on Mossberg: Media Companies Go Too Far in Curbing Consumers' Activities

[Seth Johnson]

(See Mossberg article at the bottom of this thread.  -- Seth)

-------- Original Message --------
Subject: Re: [IP] more on  Summerized -- Mossberg: Media
Companies Go Too Far in Curbing Consumers' Activities
Date: Tue, 25 Oct 2005 01:06:56 -0700
From: Seth Johnson <address@hidden>
To: address@hidden


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: address@hidden
> Date: October 20, 2005 11:10:25 AM EDT
> To: address@hidden
> 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
> 
> > 
> > -------- Original Message --------
> > Subject: [IP] Summerized -- Mossberg: Media Companies Go Too
> > Far in Curbing Consumers' Activities
> > Date: Thu, 20 Oct 2005 10:00:20 -0400
> > From: David Farber <address@hidden>
> > Reply-To: address@hidden
> > To: Ip Ip <address@hidden>
> > References: <address@hidden>
> > 
> > 
> > 
> > Begin forwarded message:
> > 
> > From: Richard Forno <address@hidden>
> > Date: October 20, 2005 9:30:41 AM EDT
> > To: Infowarrior List <address@hidden>
> > Cc: Dave Farber <address@hidden>
> > Subject: Mossberg: Media Companies Go Too Far in Curbing Consumers'  
> > Activities
> > 
> > 
> > (Agree 100% with him.....rf)
> > 
> > 
> > Media Companies Go Too Far in Curbing Consumers' Activities
> > 
> > By WALTER S. MOSSBERG
> > http://ptech.wsj.com/archive/ptech-20051020.html
> > They stand for Digital Rights Management, a set of
> > technologies for limiting how people can use the music
> > and video files they've purchased from legal downloading
> > services.  DRM is even being used to limit what you can do
> > with the music you buy on physical CDs, or the TV shows you
> > record with a TiVo or other digital video recorder.
> > 
> > Once mainly known inside the media industries and among
> > activists who follow copyright issues, DRM is gradually
> > becoming familiar to average consumers, who are
> > increasingly bumping up against its limitations.
> > 
> > ...Using a DRM system it invented called FairPlay, Apple
> > has rigged its songs, at the insistence of the record
> > companies, so that they can be played only on a maximum of
> > five computers, and so that you can burn only seven CDs
> > containing the same playlist of purchased tracks.
> > 
> > ...Some CD buyers are discovering to their dismay that new
> > releases from certain record companies contain DRM code
> > that makes it difficult to copy the songs to their
> > computers, where millions prefer to keep their music.
> > 
> > ...They believe that once a consumer legally buys a song
> > or a video clip, the companies that sold them have no
> > right to limit how the consumer uses them, any more than a
> > car company should be able to limit what you can do with a
> > car you've bought.
> > 
> > ...The companies believe they need DRM technology to block
> > the possibility that a song or video can be copied in
> > large quantities and distributed over the Internet, thus
> > robbing them of legitimate sales.
> > 
> > ...Millions of copies of songs, TV shows and movies are
> > being distributed over the Internet by people who have no
> > legal right to do so, robbing media companies and artists
> > of rightful compensation for their work.
> > 
> > ...On the other hand, I believe that consumers should have
> > broad leeway to use legally purchased music and video for
> > personal, noncommercial purposes in any way they want --
> > as long as they don't engage in mass distribution.
> > 
> > ...Instead of using DRM to stop some individual from
> > copying a song to give to her brother, the industry should
> > be focusing on ways to use DRM to stop the serious pirates
> > -- people who upload massive quantities of music and
> > videos to so-called file-sharing sites, or factories in
> > China that churn out millions of pirate CDs and DVDs.