July 22, 2024

Archives for August 2006

PRM Wars

Today I want to wrap up the recap of my invited talk at Usenix Security. Previously (1; 2) I explained how advocates of DRM-bolstering laws are starting to switch to arguments based on price discrimination and platform lock-in, and how technology is starting to enable the use of DRM-like technologies, which I dubbed Property Rights Management or PRM, on everyday goods. Today I want to speculate on how the policy argument over PRM might unfold, and how it might differ from today’s debate over copyright-oriented DRM.

As with the DRM debate, the policy debate about PRM shouldn’t be (directly) about whether PRM is good or bad, but should instead be about whether the law should bolster PRM by requiring, subsidizing, or legally privileging it; or hinder PRM by banning or regulating it; or maintain a neutral policy that lets companies build PRM products and others to study and use them as they see fit.

What might a PRM-bolstering law look like? One guess is that it will extend the DMCA to PRM scenarios where no copyrighted work is at issue. Courts have generally read the DMCA as not extending to such scenarios (as in the Skylink and Static Control cases), but Congress could change that. The result would be a general ban on circumventing anti-interoperability technology or trafficking in circumvention tools. This would have side effects even worse than the DMCA’s, but Congress seemed to underestimate the DMCA’s side effects when debating it, so we can’t rule out a similar Congressional mistake again.

The most important feature of the PRM policy argument is that it won’t be about copyright. So fair use arguments are off the table, which should clarify the debate all around – arguments about DRM and fair use often devolve into legal hairsplitting or focus too much on the less interesting fair use scenarios. Instead of fair use we’ll have the simpler intuition that people should be able to use their stuff as they see fit.

We can expect the public to be more skeptical about PRM than DRM. Users who sympathize with anti-infringement efforts will not accept so easily the desire of ordinary manufacturers to price discriminate or lock in customers. People distrust DRM because of its side-effects. With PRM they may also reject its stated goals.

So the advocates of PRM-bolstering laws will have to change the argument. Perhaps they’ll come up with some kind of story about trademark infringement – we want to make your fancy-brand watch reject third-party watchbands to protect you against watchband counterfeiters. Or perhaps they’ll try a safety argument – as responsible automakers, we want to protect you from the risks of unlicensed tires.

Our best hope for sane policy in this area is that policymakers will have learned from the mistakes of DRM policy. That’s not too much to ask, is it?

DRM Wars: Property Rights Management

In the first part of my invited talk at Usenix Security, I argued that as the inability of DRM technology to stop peer-to-peer infringement becomes increasingly obvious to everybody, the rationale for DRM is shifting. The new argument for DRM-bolstering laws is that DRM enables price discrimination and platform lock-in, which are almost always good for vendors, and sometimes good for society as a whole. The new arguments have no real connection to copyright enforcement so (I predict) the DRM policy debate will come unmoored from copyright.

The second trend I identified in the talk was toward the use of DRM-like technologies on traditional physical products. A good example is the use of cryptographic lockout codes in computer printers and their toner cartridges. Printer manufacturers want to sell printers at a low price and compensate by charging more for toner cartridges. To do this, they want to stop consumers from buying cheap third-party toner cartridges. So some printer makers have their printers do a cryptographic handshake with a chip in their cartridges, and they lock out third-party cartridges by programming the printers not to operate with cartridges that can’t do the secret handshake.

Doing this requires having some minimal level of computing functionality in both devices (e.g., the printer and cartridge). Moore’s Law is driving the size and price of that functionality to zero, so it will become economical to put secret-handshake functions into more and more products. Just as traditional DRM operates by limiting and controlling interoperation (i.e., compatibility) between digital products, these technologies will limit and control interoperation between ordinary products. We can call this Property Rights Management, or PRM.

(Unfortunately, I didn’t coin this term until after the talk. During the actual talk I used the awkward “DRM-like technologies”.)

Where can PRM technologies be deployed? I gave three examples where they’ll be feasible before too many more years. (1) A pen may refuse to dispense ink unless it’s being used with licensed paper. The pen would handshake with the paper by short-range RFID or through physical contact. (2) A shoe may refuse to provide some features, such as high-tech cushioning of the sole, unless used with licensed shoelaces. Again, this could be done by short-range RFID or physical contact. (3) The scratchy side of a velcro connector may refuse to stick to the fuzzy size unless the fuzzy side is licensed. The scratchy side of velcro has little hooks to grab loops on the fuzzy side; the hooks may refuse to function unless the license is in order. For example, Apple could put PRMed scratchy-velcro onto the iPod, in the hope of extracting license fees from companies that make fuzzy-velcro for the iPod to stick to.

[UPDATE (August 16): I missed an obvious PRM example: razors and blades. The razor would refuse to grip the blade unless the blade knew the secret handshake.]

Will these things actually happen? I can’t say for sure. I chose these examples to illustrate how far PRM micht go. The examples will be feasible to implement, eventually. Whether PRM gets used in these particular markets depends on market conditions and business decisions by the vendors. What we can say, I think, is that as PRM becomes practical in more product areas, its use will widen and we’ll face policy decisions about how to treat it.

To sum up thus far, the arguments for DRM are disconnecting from copyright, and the mechanisms of DRM are starting to disconnect from copyright in the form of Property Rights Management. Where does this leave the public policy debates? That will be the topic of the next (and final) installment.

DRM Wars: The Next Generation

Last week at the Usenix Security Symposium, I gave an invited talk, with the same title as this post. The gist of the talk was that the debate about DRM (copy protection) technologies, which has been stalemated for years now, will soon enter a new phase. I’ll spend this post, and one or two more, explaining this.

Public policy about DRM offers a spectrum of choices. On one end of the spectrum are policies that bolster DRM, by requiring or subsidizing it, or by giving legal advantages to companies that use it. On the other end of the spectrum are policies that hinder DRM, by banning or regulating it. In the middle is the hands-off policy, where the law doesn’t mention DRM, companies are free to develop DRM if they want, and other companies and individuals are free to work around the DRM for lawful purposes. In the U.S. and most other developed countries, the move has been toward DRM-bolstering laws, such as the U.S. DMCA.

The usual argument in favor of bolstering DRM is that DRM retards peer-to-peer copyright infringement. This argument has always been bunk – every worthwhile song, movie, and TV show is available via P2P, and there is no convincing practical or theoretical evidence that DRM can stop P2P infringement. Policymakers have either believed naively that the next generation of DRM would be different, or accepted vague talk about speedbumps and keeping honest people honest.

At last, this is starting to change. Policymakers, and music and movie companies, are starting to realize that DRM won’t solve their P2P infringement problems. And so the usual argument for DRM-bolstering laws is losing its force.

You might expect the response to be a move away from DRM-bolstering laws. Instead, advocates of DRM-bolstering laws have switched to two new arguments. First, they argue that DRM enables price discrimination – business models that charge different customers different prices for a product – and that price discrimination benefits society, at least sometimes. Second, they argue that DRM helps platform developers lock in their customers, as Apple has done with its iPod/iTunes products, and that lock-in increases the incentive to develop platforms. I won’t address the merits or limitations of these arguments here – I’m just observing that they’re replacing the P2P piracy bogeyman in the rhetoric of DMCA boosters.

Interestingly, these new arguments have little or nothing to do with copyright. The maker of almost any product would like to price discriminate, or to lock customers in to its product. Accordingly, we can expect the debate over DRM policy to come unmoored from copyright, with people on both sides making arguments unrelated to copyright and its goals. The implications of this change are pretty interesting. They’ll be the topic of my next post.

Blocked by Barracuda

Reader Jason Green reports that this site is blocked by Barracuda Spyware Firewall version 210. They say it’s a hacking site.

Here’s a screenshot.

UPDATE (August 4): Barracuda has acknowledged its error and says it is propagating an update to customers to fix it.

Bill Gates: Is he an IP Maximalist, or an Open Access Advocate?

Maybe both. On July 20, the Wall Street Journal reported:

Frustrated that over two decades of research have failed to produce an AIDS vaccine, Microsoft Corp. Chairman Bill Gates is tying his foundation’s latest, biggest AIDS-vaccine grants to a radical concept: Those who get the money must first agree to share the results of their work in short order.

I can’t link to the full article because the Wall Street Journal – the only major American newspaper whose online operation is in the black – puts nearly all of its online content behind a paywall. But as it happens, there isn’t a great deal more to say on this topic because the Gates foundation has declined to specify the legal details of the sharing arrangement it will mandate.

Grant recipients and outside observers were unsure whether data-sharing requirements of the grants could pose potential legal or patent conflicts with Mr. Gates’s vow to respect intellectual property. Foundation officials said this week researchers would still be free to commercialize their discoveries, but they must develop access plans for people in the developing world.

The foundation declined to make its attorney available to address these concerns.

As David Bollier noted, the lack of detail from the Gates Foundation makes it difficult to know how the tradeoffs between sharing discoveries, on the one hand, and using IP to harness their value, on the other, will actually be made. But be that as it may, there seems to be a general question here about Mr. Gates’s views on intellectual property. As Mr. Bollier put it, it may appear that hell has frozen over: that Mr. Gates, whose business model depends on the IP regime he frequently and vigorously defends, is retreating from his support of extremely strong intellectual property rights.

But hell has (as usual) probably not frozen over. The appearance of an inherent conflict between support for strong intellectual property rights and support for open access is, in general, illusory. Why? Because the decision to be carefully selective in the exercise of one’s intellectual property rights is independent of the policy questions about exactly how far those rights should extend. If anything, the expansion of IP rights actually strengthens arguments for open access, creative commons licenses, and other approaches that carefully exercise a subset of the legally available rights.

If copyright, say, only extends to a specified handful of covered uses for the protected work, then an author or publisher may be well advised to reserve full control over all of those uses with an “all rights reserved” notice. But as the space of “reservable” rights, if you will, expands, the argument for reserving all of them necessarily weakens, since it depends on the case for reserving whichever right one happens to have the least reason to reserve.

And just as it is the case that stronger IP regimes strengthen the case for various forms of creative commons, open access and the like, the reverse is also true: The availability of these infrastructures and social norms for partial, selective “copyleft” strengthens the case for expansive IP regimes by reducing the frequency with which the inefficient reservations of rights made legally possible by such regimes will actually take place.

That, I think, may be Mr. Gates’s genius. By supporting open access (of some kind), he can show the way to a world in which stronger IP rights do not imply a horrifyingly inefficient “lockdown” of creativity and innovation.