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Archives for 2005

Nobody Disputes This Post

May 9, 2005 by

Friday’s debate between Dean Garfield (MPAA’s head lawyer) and Wendy Seltzer (EFF lawyer) at Princeton was fairly interesting. I’m hoping video will be available sometime soon.

At one point, though, Dean Garfield said something that totally floored me. He was talking about technologies like Audible Magic that claim to be able to detect and block copyrighted music as it passes across a network. He asserted that that technology would be effective in stopping infringement. That’s a pretty iffy claim already. Then he went on to assert that “nobody disputes” the effectiveness of filtering.

That’s a pretty nervy statement to make in a debate. First, it’s obviously false. To give one well-known example, the computer science professors’ amicus brief in the Grokster case disputed that very claim. Two or three signers of the brief were in the room, and one of them (me) was moderating the debate.

Second, saying “nobody disputes X” is a questionable debating tactic, since it practically invites somebody in the room to falsify your statement by disputing X. Which is exactly what I felt compelled to do. Several members of the audience told me later that they would have raised their hands and disputed the effectiveness of filtering, had I not done so.

Third, if you’re going to make a statement that nobody disputes X, you ought to be able to back it up with strong evidence in support of X. When challenged to give even one example of an ordinary site where filtering was effectively preventing infringement, Mr. Garfield was unable to respond. He also dodged the question of whether the filtering software he advocates has undergone independent testing.

So why did he say that nobody disputes the effectiveness of filtering? I can only surmise that he felt compelled to say it because it is an MPAA/RIAA talking point at the moment. The old talking point used to be that filtering works. The new version, apparently, is that everybody agrees that filtering works. The change, if indeed there is one, shows that skepticism about filtering is spreading. It’s an old lawyer’s trick to assert that a claim is undisputed, in order to avoid addressing the contrary evidence.

Still, the debate was on the whole a success. Students who had studied the issue had the chance to cross-examine the speakers. Students who had not studied the issue heard the basic points made. The best possible debate, though, would have fewer talking points from both sides.

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A View from DMP World

May 5, 2005 by

The “6th General Assembly of the Digital Media Project” recently released a set of documents “providing an Interoperable DRM Platform”. I’ve written before about the self-contradictory nature of their goal (A Perfectly Compatible Form of Incompatibility). Now we get to see how they plan to achieve the goal. And I have to say, the documents are a real piece of work. I could blog for a month just dissecting them; but I won’t subject you to that. Instead, just a small sample or two.

The documents describe a world unlike the one we actually live in. They do this, mostly, by redefining words that we all understand, creating improved versions that are distinguished typographically by capitalization. (There is a whole document devoted to definitions.) When you enter DMP-World, you give up your rights; they are replaced by Rights. And unlike ordinary rights, which you may possess simply by virtue of being a human being, Rights have to be Granted to you, and they can be Withdrawn by a Creator. In DMP-World, you can’t buy devices; all you can get are Devices. You don’t whistle a tune; you execute Functions on Governed Content. The goal of all of this is to achieve Trust: “a state where Users, Devices, or Content Data enable Users to execute Functions on Governed Content”.

All of this is done with little if any reference to copyright law. There is plenty of talk about “protection” and “intellectual property” and, of course, Rights. But not much is said about the actual scope of copyright law or its correspondence to the structure of DMP-World. Instead, DMP-World seems to redesign copyright from the ground up, replacing it with something much broader, and yet at the same time much less precise. Copyright law, for example, explains with moderate precision which types of works it covers and which it doesn’t cover. In DMP-World, the system covers Works. What is a Work? Here’s the explanation (from document 2, p. 13), which I swear I’m not making up:

The first object identified and to which IP is attributed to in the Creation Model is Work. Work refers to the fruit of an effort undertaken by an individual or group of individuals that constitutes the logical construct that persists independently of the innumerable possible physical representations of that construct. A Work on the one hand can be very concrete by being unequivocally identified through a large number of differing manifestations all of which are perceived as being of the Work yet it is also ephemeral in that proof of its existence requires the use of physically perceivable resources that are not of the Work. The Work is somewhat like an invisible hand that gives shape to a glove.

Work, it seems, it a lot like the Tao: both concrete and ephemeral, existing independently of physical manifestations, and knowable only through its tendency to give shape to the world. The Tao is even described, sometimes, using the hand/glove metaphor.

To aid your understanding, here is Lin Yutang’s translation of the first chapter of the Tao Te Ching, which does seem oddly relevant to DMP-World:

The Tao the can be told of
Is not the Absolute Tao;
The Names that can be given
Are not Absolute Names.

The Nameless is the origin of Heaven and Earth;
The Named is the Mother of All Things.

Therefore:
Oftentimes, one strips oneself of passion
In order to see the Secret of Life;
Oftentimes, one regards life with passion,
In order to see its manifest forms.

These two (the Secret and its manifestations)
Are (in their nature) the same;
They are given different names
When they become manifest.

They may both be called the Cosmic Mystery:
Reaching from the Mystery into the Deeper Mystery
Is the Gate to the Secret of All Life.

That should make things perfectly clear.

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Fear-to-Peer, Art and Science at Princeton

May 4, 2005 by

“Fear-to-Peer at Princeton: A Debate about Filesharing on Campus” will be held Friday, May 6, at 3:30 P.M., in Friend Center 101 on the Princeton campus. (directions) Dean Garfield, VP and Director of Legal Affairs at the MPAA, will square off against Wendy Seltzer, an intellectual property attorney with the EFF. I’ll be the moderator. The debate is open to the public, and we’re hoping to either webcast the debate or make a video available afterward.

The debate will be just down the hall from the amazing “Art of Science” exhibition that opened yesterday. There’s also an online version. Here’s an introduction:

This spring we asked the Princeton University community to submit imagery produced in the course of research or incorporating tools and concepts from science. The response was overwhelming: more than 200 entries from nearly 100 individuals in 15 departments. We selected 55 of these works to appear in the 2005 Art of Science Exhibition.

The resulting assembly of images presents a fascinating and beautiful cross section of the arts and sciences at Princeton. It celebrates the aesthetics of research and the ways in which science and art inform each other.

This is an especially good week to be at Princeton!

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Frist Filibuster

May 3, 2005 by

Last night about 9:30 I was walking across campus, and I came across the Frist filibuster, an event that had until then existed only in the media for me, even though it has been going on for nearly a week, no more than 500 yards from my office.

The filibuster is a clever bit of political theater dreamed up by Princeton students. The idea is to mimic an old-time legislative filibuster in which people speak without interruption for heroic lengths of time (unlike the wimpy virtual filibusters one sees in the modern Senate), and to do it on the Princeton campus in front of the Frist Campus Center, which was donated by the Frist family, including Senate Majority Leader Bill Frist, who is now deciding whether to ban or curtail filibusters in the U.S. Senate. The goal is to galvanize opposition to a change in the filibuster rules. In keeping with my usual nonpartisan policy, I’ll leave aside the merits of the Senate filibuster issue here, and focus on the campus filibuster.

A website has live webcam images of the filibuster.

Last night at 9:30, two people were keeping a lonely vigil in front of the Frist Center. One, a thirtyish man, was standing at a makeshift podium and reading softly from a book, into a microphone. The other, a younger man, was in a small tent structure nearby, sitting and watching behind a table that bore a modest supply of food and drink. After a few minutes a young woman, apparently a student, arrived and took over as speaker. She started reading aloud from a photocopied article, which might have been assigned reading for a course.

I caught up with the first speaker as he was leaving. He was a not a university person, just an interested citizen from a nearby community who had come by over the weekend and had signed up then for last night’s half-hour speaking gig. He said he had started by reading Brown v. Board of Education, which he said illustrated the importance of political balance on the Supreme Court. After that he read from Stephen Jay Gould’s Dinosaur in a Haystack: Reflections in Natural History, because “Gould is my favorite biologist.” (The off-topic reading may seem odd, but I’m told it was common in old-time filibusters, where the goal was to fill time after all of the debating points had been made.)

Princeton has allowed the filibusterers to do their thing. This is clearly the right policy, notwithstanding the statements of a few commentators, some of whom should know better, that Princeton should send in the campus cops and break up the filibuster. Trying to ban a peaceful, nondisruptive, student-organized protest would be a terrible idea, and would quite possibly be illegal under Federal and/or New Jersey law.

Even crazier, in my view, is the claim that these events demonstrate inappropriate liberal bias at Princeton. Two things have happened: (1) a small subset of the student body has spoken against a change in the Senate filibuster rules, and (2) Princeton as an institution has decided to let them speak. Neither event demonstrates that Princeton as a whole has any political bias.

You may believe for other reasons that Princeton tilts to the left. That’s a topic for another day. But I don’t see how the filibuster, and Princeton’s response to it, shows any overall bias on campus. You may ask where the counter-protest is; and it’s true that there hasn’t been one. It’s part of the genius of the filibuster as political theater that there is no obvious counter-protest tactic. Holding a counter-filibuster would just draw more attention to filibustering.

Would Senator Frist want Princeton to stop the filibuster now? I doubt it. Even leaving aside the free-speech issue, the Senator is surely smart enough to see that a university clampdown is the perfect ending for the students’ political theater: the powerful authorities break the filibuster, suppressing the speech of a political minority, apparently to please a wealthy donor. That’s not an image the Senator would want associated with the anti-filibuster position.

And so the Frist filibuster goes on, and on, and on. They say they have speakers lined up at least through Thursday.

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Mobile Network Providers Flirt with (Self-)Regulation

May 2, 2005 by

Mobile phone networks in the U.S. are developing a rating and filtering system to apply to content on their networks, according to a Reuters story by Antony Bruno.

The Federal Communications Commission oversees the distribution of wireless spectrum to U.S. operators, and wireless carriers do not want the [FCC’s] indecency campaign against radio, TV and cable broadcasters to come their way.

“The adult side of things has really kick-started it,” says Mark Desautels, [cellular industry association] VP of wireless Internet development. “As indecency becomes an increasing point of interest on the part of policymakers, we really need to be proactive about it.”

Avoiding government regulation by self-regulating is an old trick. In this case, though, it’s hard to see how the self-regulation will pacify the FCC. Here’s an example, from the article:

Wireless carriers and record companies view a rating and filtering system as an opportunity to offer a greater spectrum of content, including master ringtones or voicetones with explicit lyrics. Currently, wireless carriers offer only the most non-offensive content possible because they do not have a mechanism for limiting edgier content to adults.

Do they really think that the FCC will ignore complaints about explicit ringtones being heard in public, just because those tones happen to come from the phones of grownups? The FCC wants to stop kids from seeing or hearing adult content, period. Often they seem to be trying to keep adults away from adult content. Today’s FCC will never accept explicit ringtones, or visible-to-others adult images, being distributed in public.

Even more interesting is the mobile providers’ assertion that they control what happens on their networks. This may have been true historically, but we’re shifting now to a world where phones are really Internet-connected computers that are programmable by anyone. That means a phone can, in practice, access any data that its owner wants to get.

It’s true, of course, that mobile providers can wall their users off from the Internet, and can wall the phones that use their networks off from nonapproved programs. But doing so will make phones much less useful, by shutting out most of the world programmers and most of the world’s sources of information. Competition will force mobile providers to open their phone platforms to third-party programs and content.

The mobile providers would much prefer to keep their platforms closed. There is more money to be made by operating a closed platform than an open one, as long you can’t lose business to competitors who open their platforms. If you’re a mobile provider, you must feel the urge right now to make a deal with your competitors, in which you all agree to keep your platforms closed. But that would be an agreement not to compete, which is illegal.

It would be so much more convenient if some regulation came along that had the side-effect of keeping platforms closed. Perhaps a regulation that disallowed content that hadn’t been officially categorized by a mobile network provider. A regulation, coincidentally, just like the one the industry is starting to develop.

All of this is in vain, I think. The value to customers of open phone platforms is too large to ignore, and some platforms are open already. It’s hard to see how such a useful product feature can be stopped by voluntary means. And once platforms are open, people will get the content they want, like it or not.

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