Re: I strongly urge all supporters to reconsider the EME proposal. It is not in your best interests!

On Fri, May 17, 2013 at 3:47 AM, Hugo Roy <hugo@fsfe.org> wrote:

> Dear Mark, dear participants,
>
> [This is my first email to this community group, so I still have
> to get acquainted with how this works!]
>
> We need to clarify a few things.
>
> First, whether DRM are a reality today is not in question, nobody
> is denying this. Whether DRM is economically efficient or not is
> not up for debate, people with different economic interests will
> have different perspectives. I don't think it's useful to discuss
> them here.
>
> Second, whether some people will try to make DRM work outside of
> Flash and Silverlight, this is also not worth denying. Google
> already implements EME and CDM in Chrome OS according to
> https://lwn.net/Articles/550847/ (← this is "premium content"
> behind a Paywall, not sure if you can access it; but there's no
> DRM so I can copy/paste it here:)
>
>     Posted May 16, 2013 8:02 UTC (Thu) by TRS-80 (subscriber,
>     #1804)
>     Parent article: DRM in HTML5 published in draft form
>     https://lwn.net/Articles/550424/
>
>     I don't think you're missing anything. It's also available on
>     Chromebooks, and apprently Netflix is already using it¹. The
>     CDM does cease to function if you turn on ChromeOS developer
>     mode, so while it runs on Linux there's no chance it'll be
>     supported on a standard GNU/Linux distribution.
>
>     1. https://plus.google.com/u/0/100132233764003563318/posts/6QW8TLtV6q3
>
>
Thanks for acknowledging the reality. Hopefully we can continue the debate
with this context taken as read.


> What we are discussing here is whether EME should get the W3C
> “stamp of approval” which we equate with the “Open Web”. By Open,
> it means this is something not discriminating or excluding anyone
> regardless of which technology they use.
>

I can't resist pointing out that you do wish to exclude companies that use
DRM for content distribution, which is also a choice of technology.

If I understand your position correctly, you believe that the choice to use
Free software to consume media has more legitimacy than the choice to use
DRM technology to distribute it and so that latter group should adapt to
the choice of the former. I don't believe the opposite, btw.


>
> I understand that one of the core argument put forward by the W3C
> is that the Open Web is not a synonym for "content free of charge"
> (which is a straw-man argument). The W3C CEO made the distinction
> between that and "premium content" which was implied to equate
> content restricted by DRM, hence justifying EME's approval.
>
> If I understand you correctly from your previous email to this
> group (BTW thank you for moving the discussions here); this is
> also your view.
>

Not quite. I think the web should support content distribution models other
than those in which the user is granted full rights to do whatever they
choose with the content after it has been downloaded. For example rental
and subscription models. Right now, those who sell content without full
rights require technical as well as legal restrictions on the customer.


>
>
> I think it is important to draw some distinctions here. First, we
> need to debunk the straw-man argument. AFAIK no one is claiming
> that the Open Web should only be for distributing content free of
> charge. Actually, such a requirement would be against the very
> principles of freedom that are core to the Web and core to Free
> Software (aka Open Source) licenses.
>
> Now, the second bit of the argument for supporting EME is that
> there need to be a place for "premium content" which by that I
> suppose means copyrighted films produced by corporations such as
> Hollywood studios, that Netflix has to stream.
>
> But jumping from there to assume that it means we need to have DRM
> is a whole other debate.
>

It's a reality, as you noted above, that technical restrictions are
required (by the content owners) for such content.

Changing that reality is, indeed, a whole other debate (which I've pointed
out a few times here).


>
> Sure, you say that these companies require DRM and you say they
> impose them to Netflix. Well, it's your problem if you cannot
> negotiate better terms with them, there are *no reasons* why all
> web users should have to bear the costs (directly and indirectly)
> of these technological restrictions.
>

The reason all users (web and app users too) have to bear these costs is
because the producers of the content require them to, in exchange for
viewing the content. The producers of the content have their own reasons
for that, which you could debate with them. What I have a problem with is
the idea that they are not entitled to attach (perfectly legal) conditions
of their choosing to their product offer. Noone has to accept that offer.


>
> Moreover, there are already "premium content" distributed on the
> Web, where money is involved and that do *not* require DRM. For
> instance, there are a lot of news media where you need to
> subscribe and pay a monthly fee. These media are usually not
> distributing their article under Creative Commons (which means
> you're not allowed to make and distribute copies of it, that would
> be copyright infringement). However, they are not imposing DRM on
> their users.
>

Which is fine. I'm missing how the fact that some people distribute content
without DRM means that all people must.


>
> On the other hand, it is important to keep in mind that a lot of
> DRM today (in Flash, Silverlight, etc.) is actually applied to
> content that is not "premium" at all, and usually gratis.
>

As noted above, it's not about payment or not, it's about what rights are
being sold to the user.


>
> That shows that the two issues are actually separate and should
> not be bind together to legitimate DRM, as if DRM was a
> requirement for having paid-for content on the Web. Because it is
> not.
>

But it is required today for certain models of paid-for content, by certain
people, for certain content. You could ask whether that set of models,
producers, content is important enough to web users to be supported by the
web. I'd argue that the scale of usage of such content on the Internet
today says yes.

But I think you are using "required" in some sense of physical or economic
necessity, rather than the sense of "required by a person". Of course there
is no physical necessity. As for economic necessity, there's a judgement
call there and the people entitled to make that judgement (and indeed often
required to by their duties to their shareholders) are the owners of the
content.


> Now, on why legal restrictions and technological restrictions are
> not the same:
>
> Le jeu. 16/05/13, 08:41, Mark Watson <watsonm@netflix.com>:
> > >From your site:
> >
> > *Important note* - By viewing the content of this website you agree to
> the
> > following:
> >
> >    - Copy is right
> >    - Free speech and privacy are not up for debate
> >    - Non Free software is evil
> >
> >
> > For the record I do not agree to the third of these, nor to the first if
> it
> > means what I think it means (all copying is morally justified). These are
> > huge and far-reaching propositions. You clearly believe it is reasonably
> to
> > place these as conditions of access to your content. Why is it not
> > reasonable for a content owner to require the use of DRM ?
> >
> > ...Mark
>
> This is like comparing apples and oranges. This is an entirely
> different matter. Legal restrictions and technological
> restrictions cannot be on the same metric.
>

Of course they are different. Emmanual clarified that his conditions were
not intended seriously, which was obvious, but my point was to illustrate a
common form of argument that it is ok for authors to impose conditions of
access on their content but only if those conditions have some kind of
superior moral status.

Now, you may be arguing that legal conditions are ok, but technical ones
are not, which is a different and less slippery distinction than the moral
one. But there is clearly not consensus amongst opponents of EME on this.
Often it is argued that the technical restrictions are wrong because the
legal restrictions they enforce are also wrong in some way.


> You are right that the notice above is clearly claiming to have
> legally far-reaching consequences. They are huge conditions of
> access to the content. (BTW, it seems to me to be a parody of
> Terms of Service rather than a real one)
>
> But, unlike DRM, this notice is just texts and does not make the
> user surrender anything.
>
> For instance, you are able to access the website and "view its
> content" without actually agreeing to these. If there's a problem,
> you can got to a court of law and explain the judge why all this
> is wrong and why this isn't reasonable. Or maybe it will be judged
> to be reasonable (I doubt it), then you will have to answer the
> consequences for your actions. This is what being an adult,
> responsible person with legal powers means.
>
> Unlike text, DRM technology restricts the user and thus takes
> away its ability to perform some actions in his/her private
> sphere, under his/her own responsibility. This is why DRM is
> an unfair restriction that every person should refuse: it makes
> users powerless.
>

You say DRM restricts what the user can do with the content and then you
simply assert that this restriction is unfair. The technical restrictions
match the legal ones that the user has freely agreed to. You may argue that
the legal restrictions are unfair, but the user doesn't have to agree to
them and has all the usual recourse (to the courts etc.) to challenge
unfair legal terms.


>
> The other problem is that with DRM, you are prevented from doing
> things which can actually be entirely lawful under your
> jurisdiction. To impose DRM on users can be a way to claim more
> power than you are legally entitled to, and thus is morally wrong.
>

As has been frequently argued, DRM doesn't actually prevent such use, it
just makes it less convenient. (I accept this isn't an especially strong
argument here, though).

Also, noone is imposing anything on anyone. The contract to receive and
view content is freely entered into by both parties.

IANAL, but it's not obvious to me that the limitations on copyright you
refer to imply a requirement to use technical means of distribution that
make all non-copyright-infringing uses easy. Especially since, with the
state-of-the-art as it is, such means would also make copyright-infringing
uses easy as well. There is a question of balance here between the public
interest in the limitations on copyright actually working in practice and
public interest in copyright actually working in practice. Arguing nuances
of that balance is probably beyond my competence and not really in scope
here, but I feel it is sufficient to address the "morally wrong" point to
note that this is a balance not an absolute. The W3C should note that this
is a matter of ongoing public debate in both the political and legal
spheres and ensure that the web has the technologies necessary to support
the variety of possible outcomes.


> So you cannot compare legal restrictions with technological
> restrictions. They are just entirely different matters, and W3C
> should not replace legislators around the world by designing EME.
>
>
>
> Now I understand that the position that DRM is bad is not
> something Netflix can understand, as your commercial partners ask
> you to stream content with DRM.
>

The first part of your sentence doesn't follow from the second.

Neither I nor Netflix have stated a position on whether DRM is good or bad.
I have only argued that it is not obviously "morally wrong", "evil" or
"unethical" as has been claimed.


>
> But, under the current EME proposal as far as I understand it
> (please correct me if I'm wrong) any implementation of this
> specification would ultimately impose unfree software on web users
> (and by unfree software I do not mean gratis obviously, but
> software that comes with the freedoms safeguarded by the
> licenses).
>

As noted above, noone is "imposing" anything on anybody.

>
> You have written that the web browser could rely on the platform
> providing the closed-source modules; but that would still mean the
> obligation to use unfree software. You have also written in the
> past, that it was okay because the closed-source parts could be in
> hardware rather than software
> (
> http://arstechnica.com/business/news/2012/02/unethical-html-video-copy-protection-proposal-criticized-by-standards-stakeholders.ars
> )
>
> So that effectively means that EME would either exclude free
> software users and impose unfree software, or  exclude users who
> have not bought specific proprietary hardware.
>

It's not EME that is excluding anyone. It's the license terms of the
content. Those do indeed exclude people who will not agree to those terms
from purchasing the content, but that is true for any product offer and
will remain true with or without EME.


>
> If W3C approves EME, that would be W3C approving to impose unfree
> software to Web users. I don't see how that's compatible with
> anything claimed as “open”.
>

I see it as a much weaker statement on the part of the W3C. It's more along
the lines of the W3C saying to browsers that if they are going to provide
support for product offers with terms of the kind we've been discussing
(which they are), please do it this way. The alternative is that the W3C
says nothing and then we have a worse situation for users in various ways.

The W3C doesn't need to "approve" of those product offers in order to see
the value in standardizing how they are supported on the web. Indeed, I
wouldn't expect the W3C to pass judgement on any product offer, either to
approve or disapprove of it.

...Mark




>
>
> Hugo
>
>
> --
> Hugo Roy | Free Software Foundation Europe, www.fsfe.org
> FSFE Legal Team, Deputy Coordinator, www.fsfe.org/legal
> FSFE French Team, Coordinator, www.fsfe.org/fr/
>
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>