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Latest Induce Act Draft Still Buggy

October 8, 2004 by

Reportedly the Induce Act has stalled, after the breakdown of negotiations over statutory language. Ernest Miller has the last draft offered by the entertainment industry.

(Notice how the entertainment industry labels its draft as the “copyright owners'” proposal. It takes some chutzpah to call your side the “copyright owners” when the largest copyright-owning industry – the software industry – is on the other side.)

The draft tries makes yet another attempt to define “peer-to-peer”. While the last draft’s definition was too broad, including, for example, the Web, this one is too narrow. It probably encompasses most or all of the P2P systems currently being used, but its narrowness allows those systems to be redesigned to evade the definition.

Here’s the definition:

The term “covered peer-to-peer product” shall mean a widely available device, or computer program for execution on a large number of devices, communicating over the Internet or any other publicly available network and performing or causing the performance at each such device all of the following functions:

(i) providing search information relating to copies or phonorecords available for transmission to other devices;

(ii) locating other devices that provide information relating to copies or phonorecords available for transmission that is responsive to search requests describing desired copies or phonorecords; and

(iii) transmitting a requested copy or phonorecord to another device that located the copy or phonorecord through such other device’s performance of the function described in clause (ii);

unless the provider of the device or computer program has the right and ability to control the copies or phonorecords that may be located by its use.

It looks like there are several ways to design a P2P system that evades this definition:

The definition requires each device to do all three of the enumerated functions. A system could have some devices do a subset of the functions.

The product must be a device or a program, which would appear to exempt systems that use multiple programs to perform different functions.

Function (iii) requires that the copy be transmitted to another device, and that other device must have located the copy to be transmitted via function (ii). Data could move through intermediaries that don’t use function (ii).

As I’ve written before, it’s awfully hard to come up with a statutory definition of peer-to-peer, because many popular and completely legitimate services on the net are designed in a peer-to-peer style; and because there is nothing special about the particular design strategy used by today’s P2P filesharing systems.

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Business Week on Chilled Researchers

October 7, 2004 by

Heather Green at Business Week has a nice new piece, “Commentary: Are the Copyright Wars Chilling Innovation?” Despite the question mark in the title, it’s clear from the piece that innovation is being chilled, especially in the research community.

The piece starts out by retelling the story of the legal smackdown threatened against my colleagues and me over a paper on digital watermarking technology. It goes on to discuss the chilling effect of copyright-related overregulation on others:

Intimidation isn’t hard to spot in academia. Aviel Rubin, a Johns Hopkins University professor who last year uncovered flaws in electronic-voting software developed by Diebold Inc. (DBD ), says he spends precious time plotting legal strategies before publishing research connected in any way to copyrights. Matthew Blaze, a computer scientist at the University of Pennsylvania, avoids certain types of computer security-related research because the techniques are also used in copy protection.

The pall has spread over classrooms as well. Eugene H. Spafford, a professor and digital-security expert at Purdue University, and David Wagner, an associate professor of computer science at the University of California at Berkeley, are refusing to take on teaching assignments in certain areas relating to computer security. “The problem isn’t that we’re worried about prosecution from the government. The problem is the civil lawsuits from the movie and music industries,” Spafford says. “I don’t have the resources to deal with that.”

Rubin, Blaze, Spafford, and Wagner are all leaders in the field, and all are avoiding legitimate and useful research and/or teaching because of the DMCA and laws like it.

The movie industry, as usual, offers nothing but the suspension of disbelief. Fritz Attaway: “It’s easy to assert you feel chilled, but I don’t see any evidence to support that”. This from an industry with a long record of suing technical innovators.

[link via SNTReport.com]

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Recent Induce Act Draft

October 5, 2004 by

Reportedly, the secret negotiations to rewrite the Induce Act are ongoing. I got hold of a recent staff discussion draft of the Act. It’s labeled “10/1” but I understand that the negotiators were working from it as late as yesterday.

I’ll be back later with comment.

UPDATE (8 PM): This draft is narrower than previous ones, in that it tries to limit liability to products related “peer-to-peer” infringement. Unfortunately, the definition of peer-to-peer is overbroad. Here’s the definition:

the term “peer-to-peer” shall mean any generally available product or service that enables individual consumers’ devices or computers, over a publicly available network, to make a copy or phonorecord available to, and locate and obtain a copy or phonorecord from, the computers or devices of other consumers who make such content publicly available by means of the same or an interoperable product or service, where –

(1) such content is made publicly available among individuals whose actual identities [and electronic mail address] are unknown to one another; and

(2) such program is used in a manner in which there is no central operator of a central repository, index or [directory] who can remove or disable access to allegedly infringing content.

By this definition, the Web is clearly a peer-to-peer system. Arguably, the Internet itself may be a peer-to-peer system as well.

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What's the Cybersecurity Czar's Job?

October 4, 2004 by

The sudden resignation of Amit Yoran, the Department of Homeland Security’s “Cybersecurity Czar”, reportedly due to frustration at being bureaucratically marginalized, has led to calls for upgrading of the position, from the third- or fourth-level administrator billet that Yoran held, to a place of real authority in the government. If you’re going to call someone a czar you at least ought to give him some power.

But while we consider whether the position should be upgraded, we should also ask what the cybersecurity czar should be doing in the first place.

One uncontroversial aspect of the job is to oversee the security of the government’s own computer systems. Doing this will require the ability to knock heads, because departments and offices won’t want to change their practices and won’t want to spend their budgets on hiring and retaining top quality system administrators. That’s one good argument for upgrading the czar’s position, perhaps affiliating it with a government-wide Chief Information Officer (CIO) function.

A harder question is what the government or its czar can do about private-sector insecurity. The bully pulpit is fine but it only goes so far. What, if anything, should the government actually do to improve private-sector security?

Braden Cox at Technology Liberation Front argues that almost any government action will do more harm than good.

In an article I wrote last year when Yoran was first appointed, I argued that the federal government has a role to play in cybersecurity, but that it should not be in the business of regulating private sector security. Mandated security audits, stringent liability rules, or minimum standards would not necessarily make software and networks more secure than would a more market-based approach, though it would surely help employ more security consultants and increase the bureaucracy and costs for industry.

Certainly, most of the things the government can do would be harmful. But I don’t see the evidence that the market is solving this problem. Despite the announcements that Microsoft and others are spending more on security, I see little if any actual improvement in security.

There’s also decent evidence of a market failure in cybersecurity. Suppose Alice buys her software from Max, and Max can provide different levels of security for different prices. If Alice’s machine is compromised, she suffers some level of harm, which she will take into account in negotiating with Max. But a breakin to Alice’s machine will turn that machine into a platform for attacking others. Alice has no incentive to address this harm to others, so she will buy less than a socially optimal level of security. This is not just a theoretical possibility – huge networks of compromised machines do exist and do sometimes cause serious trouble.

Of course, the existence of a problem does not automatically imply that government action is required. Is there anything productive the government can do to address this market failure?

I can see two possibilities. The first approach is for the government to use its market power, as a buyer of technology, to try to nudge the market in the right direction. Essentially, the government would pay for compromise-resistance, beyond its market incentive to do so, in order to bolster the market for more compromise-resistant software. For example, it might, in deciding what to buy, try to take into account the full social cost of potential breakins to its computers. Exactly how to make this happen, within a budget-conscious bureaucracy, is a challenge that I can’t hope to address here.

The second approach government might take is to impose some form of liability, on somebody, for the types of security breaches associated with this market failure. Liability could be placed on the user (Alice, in our example above) or on the technology vendor. There has been lots of talk about the possibility of liability rules, but no clear picture has emerged. I haven’t studied the issue enough to have a reliable opinion on whether liability changes are a good idea, but I do know that the idea should not be dismissed out of hand.

What’s clear, I think, is that none of these possibilities require a “czar” position of the sort that Yoran held. Steps to improve cybersecurity inside the government need muscle from a CIO type. Changes to liability rules should be studied, but if they are adopted they won’t require government staff to administer them. We don’t need a czar to oversee the private sector.

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Sin in Haste, Repent at Leisure

October 1, 2004 by

Ernest Miller, continuing his stellar coverage of the Induce Act, reports that, according to PublicKnowledge:

An all-star game of private sector legislative drafters will start at 10:30 [today]. There will be representatives from consumer electronics, Verizon, CDT, and others on our team and from the usual suspects on the other team. They are supposed to produce a draft by 4 p.m. That draft will then be, probably revised, to see if it can be marked up next week.

Yes, you read that right: critically important decisions about our national innovation policy need to be made, and a small group has been given a few hours to make them.

The result of this process will be yet another Induce Act draft. Doubtless it will take the same approach – blanket bans on broad classes of behavior, with narrow carveouts to protect the present business plans of the groups in the room – as the previous bad drafts.

How bad have these drafts been? Well, as far as I can tell, the now-current draft would appear to ban the manufacture and sale of photocopy machines by companies like Xerox.

Xerox induces infringement because, when it makes and sells photocopiers, it “engage[s] in conscious and deliberate affirmative acts that a reasonable person would expect to result in widespread [copyright infringement] taking into account the totality of circumstances.” After all, everybody knows that photocopiers are sometimes used to infringe, so that widespread distribution of copiers will lead to widespread infringement.

Now we come to the issue of the narrow carveouts. The Induce Act draft does have two subsections that provide carveouts, which appear to be constructed to protect iPods. But those carveouts appear not to protect Xerox. Subsection (C) of the draft exempts some product distributors, but only if the infringements that are induced are entirely private, non-commercial, and done by consumers. This would appear not to protect Xerox, which has many commercial customers. Subsection (D) exempts Xerox’s user manuals and advertising, but not the distribution of its copiers, so that doesn’t help either. It looks like Xerox would be liable as an inducer under the current draft.

Am I missing something here? Perhaps a reader who is a lawyer can straighten me out. Regardless, this kind of analysis shows the risk induced by the “broad ban; narrow carveouts” approach to tech regulation – the risk that some legitimate business activity will fall outside the carveouts.

This problem is at its worst when regulatory language is written in a hurry, and when only a few stakeholders are invited to participate in drafting it. But that’s exactly what is scheduled to be happening, right now, in a conference room in Washington.

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