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Date: 2001-01-30

Gilmore: Warum Kopierschutz Scheisse ist

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Dieser wesentlich [höflicher gehaltene als der q/titel
suggeriert] Briefwechsel des John Gilmore mit Ron Rivest ist
absolut lesenswert. Hier treffen zwei vorzeitliche Denk/welten
zweier sagenhaften Riesengestalten aus der grauen Vorzeit
des Internet, die erstens gar nicht soo alt und zweitens auch
nur Menschen sind, aufeinander, von denen eine [Rivests
Welt] deutlich älter ist. Das alte, politische Begriffsystem mit
seinen links/rechts Dualitäten und Begriffs/besetzungen ist
nicht erst jetzt am Ende. Hier manifestiert es sich nur wieder
einmal schön.

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ohnesorge" <gohnesorge@lh-> -.-. --.- -.-
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Ron Rivest asked me, "I think it would be illuminating to hear
your views on the differences between the Intel/IBM content-
protection proposals and existing practices for content
protection in the TV scrambling domain. The devil's advocate
position against 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?"

First, I call it copy protection rather than content protection,
because "content" is such a meaningless word. What the
technology actually does is to deter copying. Such
technologies have a long history in computing, sta rting with
the first microcomputers, minicomputers, and workstations.
Except in very small niches, all such systems ultimately
failed. Many failed because of active opposition from their
buyers, who purchased alternative products that did not
restrict copying.

There is nothing wrong with allowing people to optionally
choose to buy copy-protection products that they like. What
is wrong is when:

Competing products are driven off the market

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 Aud io 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 i t 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 "submit ted" 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 MiniD isc 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 ma rket. 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 too k 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 t hink 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 h ave 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
whic h 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.

Companies don't disclose copy-protection restrictions

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 (http://ww 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 b
u rner 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 "profess
i on al 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.
T hes e 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 sittin
g 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 copyrighte
d 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-
n ew 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 t
h e 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 Adopte
rs A greement", 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" http:/
/w ww. Lying to your customers to mislead them into buying your products is wrong.

Scientific research is unpublishable

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 d
eliberately 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 in
t erest 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
SD MI 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
S DMI companies how easy it is to break their scheme, but it isn't OK to tell the public or other scientific researchers.

Competition is prevented

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 a
nd 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 p
u blisher 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 bu
t d oes 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 d
i git al 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 "v
oi ce q uality monaural".

Abuse of "copyright protection" rewards monopolies

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 hol
der. 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 ti
c ket 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
DV Ds.) 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
w on' 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 encry
pted 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 DM
C A 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 g rant 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.

Social policy is created without public input

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 s
pecification, 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 co
p ies 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,
b ec ause 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
-r oom policies end up favoring the parties who were in the room, at the expense of consumers and the public?

Copyright's balance of benefits is lost

What is wrong is when the balance between the rights of creators and the rights of freedom of speech and the press is lost. Any increase in the rights of creators is a decrease in the public's right of free speech and pub
lication. 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, few works created after 1910 have ente
r ed the public domain, if their owners did not abandon their copyright, because as the years went by, the term of copyright kept getting extended. But the copy-rights created by technological restrictions are not even d
e si gned 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".

Beneficiaries are a tiny fraction of society

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" a
nd "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!"
D istorting 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 l
on g-term stability of societies, it would be the wrong economic decision.

Society can truly eliminate scarcity, but not this way!

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 t
hat 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
r esources 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 s
ca rcity. 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
, sa nitary 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 t
echnology 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 ind
u stry. 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 mak
e 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, s
u ch 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
ad vantages 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 restr
icting 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 in
t o 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 wi
d es pread. 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
Li nux 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 sof
twa re 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 e
xtremely 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 AN
D 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 e
x i st 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
o r 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 econ
omi c 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

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published on: 2001-01-30
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