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DRM Wars: Property Rights Management

August 14, 2006 by

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.

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DRM Wars: The Next Generation

August 9, 2006 by

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.

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Blocked by Barracuda

August 3, 2006 by

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.

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

August 1, 2006 by

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.

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The New Yorker Covers Wikipedia

July 27, 2006 by

Writing in this week’s New Yorker, Stacy Schiff takes a look at the Wikipedia phenomenon. One sign that she did well: The inevitable response page at Wikipedia is almost entirely positive. Schiff’s writing is typical of what makes the New Yorker great. It has rich historical context, apt portrayals of the key characters involved in the story, and a liberal sprinkling of humor, bons mots and surprising factual nuggets. It is also, as all New Yorker pieces are, rigorously fact-checked and ably edited.

Normally, I wouldn’t use FTT as a forum to “talk shop” about a piece of journalism. But in this case, the medium really is the message – the New Yorker’s coverage of Wikipedia is itself a showcase for some of the things old-line publications still do best. As soon as I saw Schiff’s article in my New Yorker table of contents (yes, I still read it in hard copy, and yes, I splurge on getting it mailed abroad to Oxford) I knew it would be a great test case. On the one hand, Wikipedia is the preeminent example of community-driven, user-generated content. Any coverage of Wikipedia, particularly any critical coverage, is guaranteed to be the target of harsh, well-informed scrutiny by the proud community of Wikipedians. On the other, The New Yorker’s writing is, indisputably, among the best out there, and its fact checking department is widely thought to be the strongest in the business.

When reading Wikipedia, one has to react to surprising claims by entertaining the possibility that they might not be true. The less plausible a claim sounds, the more skepticism one must have when considering it. In some cases, a glance at the relevant Talk page helps, since this can at least indicate whether or not the claim has been vetted by other Wikipedians. But not every surprising claim has backstory available on the relevant talk page, and not every reader has the time or inclination to go to that level of trouble for every dubious claim she encounters in Wikipedia. The upshot is that implausible or surprising claims in Wikipedia often get taken with a grain or more of salt, and not believed – and on the other hand, plausible-sounding falsehoods are, as a result of their seeming plausibility, less likely to be detected.

On the other hand, rigorous fact-checking (at least in the magazine context where I have done it and seen it) does not simply mean that someone is trying hard to get things right: It means that someone’s job depends on their being right, and it means that the particularly surprising claims in the fact-checked content in particular can be counted on to be well documented by the intense, aspiring, nervous young person at the fact checker’s desk. At TIME, for example, every single word that goes in to the magazine physically gets a check mark, on the fact-checkers’ copy, once its factual content has been verified, with the documentation of the fact’s truth filed away in an appropriate folder (the folders, in a holdover from an earlier era, are still called “carbons”). It is every bit as grueling as it sounds, and entirely worthwhile. The same system is in use across most of the Time, Inc. magazine publishing empire, which includes People, Fortune, and Sports Illustrated and represents a quarter of the U.S. consumer magazine market. It’s not perfect of course – reports of what someone said in a one-on-one interview, for example, can only ever be as good as the reporter’s notes or tape recording. But it is very, very good. In my own case, knowing what goes in to the fact-checking process at places like TIME and The New Yorker gives me a much higher level of confidence in their accuracy than I have when, as I often do, I learn something new from Wikipedia.

The guarantee of truth that backs up New Yorker copy gives its content a much deeper impact. Consider these four paragraphs from Schiff’s story:

The encyclopedic impulse dates back more than two thousand years and has rarely balked at national borders. Among the first general reference works was Emperor’s Mirror, commissioned in 220 A.D. by a Chinese emperor, for use by civil servants. The quest to catalogue all human knowledge accelerated in the eighteenth century. In the seventeen-seventies, the Germans, champions of thoroughness, began assembling a two-hundred-and-forty-two-volume masterwork. A few decades earlier, Johann Heinrich Zedler, a Leipzig bookseller, had alarmed local competitors when he solicited articles for his Universal-Lexicon. His rivals, fearing that the work would put them out of business by rendering all other books obsolete, tried unsuccessfully to sabotage the project.

It took a devious Frenchman, Pierre Bayle, to conceive of an encyclopedia composed solely of errors. After the idea failed to generate much enthusiasm among potential readers, he instead compiled a “Dictionnaire Historique et Critique,” which consisted almost entirely of footnotes, many highlighting flaws of earlier scholarship. Bayle taught readers to doubt, a lesson in subversion that Diderot and d’Alembert, the authors of the Encyclopédie (1751-80), learned well. Their thirty-five-volume work preached rationalism at the expense of church and state. The more stolid Britannica was born of cross-channel rivalry and an Anglo-Saxon passion for utility.

Wales’s first encyclopedia was the World Book, which his parents acquired after dinner one evening in 1969, from a door-to-door salesman. Wales—who resembles a young Billy Crystal with the neuroses neatly tucked in—recalls the enchantment of pasting in update stickers that cross-referenced older entries to the annual supplements. Wales’s mother and grandmother ran a private school in Huntsville, Alabama, which he attended from the age of three. He graduated from Auburn University with a degree in finance and began a Ph.D. in the subject, enrolling first at the University of Alabama and later at Indiana University. In 1994, he decided to take a job trading options in Chicago rather than write his dissertation. Four years later, he moved to San Diego, where he used his savings to found an Internet portal. Its audience was mostly men; pornography—videos and blogs—accounted for about a tenth of its revenues. Meanwhile, Wales was cogitating. In his view, misinformation, propaganda, and ignorance are responsible for many of the world’s ills. “I’m very much an Enlightenment kind of guy,” Wales told me. The promise of the Internet is free knowledge for everyone, he recalls thinking. How do we make that happen?

As an undergraduate, he had read Friedrich Hayek’s 1945 free-market manifesto, “The Use of Knowledge in Society,” which argues that a person’s knowledge is by definition partial, and that truth is established only when people pool their wisdom. Wales thought of the essay again in the nineteen-nineties, when he began reading about the open-source movement, a group of programmers who believed that software should be free and distributed in such a way that anyone could modify the code. He was particularly impressed by “The Cathedral and the Bazaar,” an essay, later expanded into a book, by Eric Raymond, one of the movement’s founders. “It opened my eyes to the possibility of mass collaboration,” Wales said.

After reading this copy, and knowing how The New Yorker works, one can be confident that a devious Frenchman named Pierre Bayle once really did propose an encyclopedia comprised entirely of errors. The narrative is put together well. It will keep people reading and will not cause confusion. Interested readers can follow up on a nugget like Wales’ exposure to the Hayek essay by reading it themselves (it’s online here).

I am not a Wikipedia denialist. It is, and will continue to be, an important and valuable resource. But the expensive, arguably old fashioned approach of The New Yorker and other magazines still delivers a level of quality I haven’t found, and do not expect to find, in the world of community-created content.

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