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Valenti Quotes Me

May 12, 2004 by

In his testimony at the House DMCA-reform hearing today, Jack Valenti quoted me, in support of a point he wanted to make. The quote comes from last year’s Berkeley DRM Conference, from my response to a question asked by Prof. Pam Samuelson. Here’s the relevant section from Mr. Valenti’s testimony (emphasis in original):

Keep in mind that, once copy protection is circumvented, there is no known technology that can limit the number of copies that can be produced from the original. In a recent symposium on the DMCA, Professor Samuelson of UC Berkeley posed the question: “whether it was possible to develop technologies that would allow…circumvention for fair uses without opening up the Pandora’s Box so that allowing these technologies means that you’re essentially repealing the anti-circumvention laws.”

The question was answered by the prominent computer scientist and outspoken opponent of the DMCA, Professor Ed Felton [sic] of Princeton: “I think this is one of the most important technical questions surrounding DRM – whether we know, whether we can figure out how to accommodate fair use and other lawful use without opening up a big loophole. The answer, I think, right now, is that we don’t know how to do that. Not effectively.”

Moreover, there is no known device that can distinguish between a “fair use” circumvention and an infringing one. Allowing copy protection measures to be circumvented will inevitably result in allowing anyone to make hundreds of copies – thousands – thereby devastating the home video market for movies. Some 40 percent of all revenues to the movie studios come from home video. If this marketplace decays, it will cripple the ability of copyright owners to retrieve their investment, and result in fewer and less interesting choices at the movie theater.

Here’s the full excerpt from the DRM Conference transcript:

Question from Prof. Pam Samuelson:

So yesterday when I was doing the tutorial, Alex Alben asked me a question which, because I’m not a technologist, I was not in a very good position to try to answer, but since there are several technologists on this panel who are interested in information flows. The question that was put to me was a question about whether it was possible to develop technologies that would allow circumvention for fair use or other non-infringing purposes. Is it possible to sort of think creatively about anti-circumvention laws that might allow some room for circumvention for fair uses without opening up the Pandora’s box so that allowing these technology means that you’ve essentially repealed the anti-circumvention laws.

[Other panelists’ answers omitted.]

Answer by Ed Felten:

I think this is one of the most important technical questions around DRM, whether we know, whether we can figure out how to accommodate fair use and other lawful use without opening up a big loophole. And the answer is, I think, right now, is that we don’t know how to do that. Not effectively. A lot of people would like to know whether we can do that or how we go about doing it, but it’s a big open question right now.

Let’s leave aside for now the flaws in Mr. Valenti’s argument, and focus just on his use of the quote. Note that he artfully excerpts segments from Prof. Samuelson’s question, to make it appear that she asked a different question than she really did. Also note that he removes an important part of my answer: the last sentence, where I talk about the technological relation between DRM and fair use as being a “big open question”.

Which brings us back to the bill being discussed today. If we want to answer the “big open question” I mentioned, we need to do more research. But the DMCA severely limits some of the key research that we would need to do. The Boucher-Doolittle bill would open the door to this research, by creating a research exemption to the DMCA. But that issue is apparently not up for discussion today.

[Note: This post is based on Mr. Valenti’s written testimony, of which I have a copy. I did not hear his live testimony. Seth Finkelstein reports that Mr. Valenti did use the quote in his oral testimony.]

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House DMCA Reform Hearing Today

May 12, 2004 by

Today a congressional committee will hold a hearing on the Boucher-Doolittle bill (H.R. 107), known as the DMCRA, that would reform the DMCA. The hearing will be webcast, starting at about 10:00 AM Eastern. Look here for a witness list and link to the webcast.

The DMCRA would do four main things: require labeling of copy-protected CDs; allow circumvention of DRM for non-infringing purposes; allow the distribution of DRM-circumvention tools that enable fair use; and create an exemption to the DMCA for legitimate research.

Based on the witness list and other hints I have gotten, it appears that the hearing will focus on the consumer provisions of the bill. There probably won’t be much discussion of the much-needed research exemption.

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DRM as Folding Chair

May 11, 2004 by

Frank Field offers an interesting analogy:

DRM is a folding chair – specifically, it’s one of those folding chairs that people use after shoveling out the snow from a parking space that they use to claim it after they drive away.

For those of you who don’t have to cope with snow, I know that sounds incredible (it was to me when I moved here from South Carolina), but this is a real problem in cities with limited parking and poor snow removal. People who shovel out their cars will have a ratty old folding chair or an old street cone or, if they’re feeling really aggressive, an old kid’s toy that they will plant squarely in the middle of the shoveled-out parking space. This object “marks” the spot, and everyone knows what it means – this is my spot: park here and you will suffer the consequences.

This struck me, in part, because it echoes an example I like to use. When teaching about the theory of property, I start with a class discussion about whether there should be a property right in shoveled-out parking spaces. It’s a helpful example because everybody understands it, few people have a predisposition one way or the other, and it exposes most of the tradeoffs involved in creating a new form of property.

As Frank describes it, “ownership” of a Cambridge parking space is effected not by any legal right but by the threat that noncompliant cars will be vandalized. This is a key distinction. Typically, some of my students end up endorsing a limited property right in shoveled-out parking spaces, but my guess is that they would feel differently about a system created by private decree and “enforced” by vandalism.

This is where the analogy to DRM gets complicated. DRM systems don’t trash the computers of noncompliant users, so they don’t rely on the same kind of intimidation that Frank’s folding-chair owners use.

But Frank’s analogy does work very nicely in one dimension. DRM developers, like Cambridge folding-chair owners, are trying to establish a social norm that people should keep out of the territory they claim. Such claims should be evaluated on their merits, and not just taken for granted.

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Japanese P2P Author Arrested

May 10, 2004 by

Japanese police have arrested the author of Winny, a peer-to-peer application popular in Japan, according to a story on ABC News’s Australian site. (Reportedly, a more detailed article is available in Japanese.) Isamu Kaneko, a 33 year old Computer Engineering “guest research associate” at Tokyo University, was arrested for conspiracy to infringe copyright. If convicted, he faces a maximum penalty of three years in prison. Winny’s author had previously been known only by the online moniker “47,” but police apparently used the records of some kind of online bulletin board to identify him.

UPDATE (10:20 AM): Corrected Mr. Kaneko’s job title. I originally wrote “graduate student” based on the ABC article, but Seth Finkelstein pointed me to an authoritative page at Tokyo University with the accurate title.

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Is the U.S. Losing its Technical Edge?

May 7, 2004 by

The U.S. is losing its dominance in science and technology, according to William J. Broad’s article in the New York Times earlier this week. The article looked at the percentage of awards (such as Nobel Prizes in science), published papers, and issued U.S. patents that go to Americans, and found that the U.S. share had declined significantly.

Although the trend is real, the article does oversell it. For example, the graph that appears at the top shows the number of papers published in physics journals, by the author’s country of origin. Classifying based on country of origin undercounts American scientists, many of whom were born in other countries. Bear in mind, too, that the U.S. lead is smaller in mature fields like physics than it is in developing fields like computer science, so focusing mainly on mature fields will make the U.S. position look worse than it really is.

Yet even by more careful measures, the consensus seems to be that the overall U.S. lead is narrowing. What are the implications of this for Americans?

It all depends on whether you see science and technology as a zero-sum game. If you view science and technology as instruments of national power (both hard military power and soft cultural power), then technical advancement is a zero-sum game and what matters most is how we compare to other countries. But if you see science and technology as creating knowledge and prosperity that diffuse out to the population as a whole, then technical advancement is not a zero-sum game, and you should welcome the flow of knowledge across borders – in both directions. Both views have some validity.

The clash between these two views seems most extreme in immigration policy. As I noted above, immigration has been a big contributor to the quality of U.S. science. But now, more than any time I can remember, U.S. immigration policy is suspicious of foreigners, and especially those who want to work in technical fields. Regardless of the wisdom of this policy – and I think it is tilted too far toward suspicion – we have to recognize the price we pay by adopting it (not to mention the price paid by the overwhelming majority of would-be immigrants from whom we have nothing to fear). Overseas applications to U.S. graduate schools in computer science and other technical fields seem to have dropped sharply this year; and that’s a very bad sign.

I’m glad to see that the health of our technical communities is starting to become more of a national priority. In today’s climate, national competitiveness will be an increasingly effective argument against over-regulation of technology. And after nearly a decade of seeing parts of my technical field turned into legal and regulatory minefields, I would like nothing more than to have the tide turn so that policymakers think about how to make technologists’ jobs easier rather than harder.

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