John Gilmore on DRM, more or less

Forwards deleted...
 >Date: Thu, 18 Jan 2001 17:06:07 -0800
 >From: John Gilmore <>
 >Cc: Ron Rivest <>,
 >Subject: What's Wrong With Content Protection
 >Ron Rivest asked me:
 >>I think it would be illuminating to hear your views on the differences 
 >>the Intel/IBM content-protection proposals and existing practices for 
 >>protection in the TV scrambling domain.  The devil's advocate position 
 >>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.
 >(  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 all?
 >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 equipment, 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
 >(  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 quality".
 >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 .  All Intel
 >tells you that CPPM will "give consumers access to more music"
 >(  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,
 >(, 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  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
Alan Kotok, Associate Chairman                
World Wide Web Consortium                       
MIT Laboratory for Computer Science,  200 Technology Square,  Room NE43-364
Cambridge, MA 02139, USA     Voice: +1-617-258-5728    Fax: +1-617-258-5999

Received on Tuesday, 23 January 2001 13:44:43 UTC