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Fair Use: A Rhetorical Black Hole?

December 6, 2002 by

Yesterday’s exchange with Ernest Miller got me to thinking about why I didn’t mention fair use in my initial posting. I realized there is another reason that I hadn’t stated before: that I was trying to avoid the rhetorical black hole that fair use has become.

A rhetorical black hole is like an astronomical black hole: events inside it have no effect on the outside, and yet it attracts everything in its vicinity.

Abortion is the classic rhetorical black hole in American politics. Nearly everybody has a strongly held opinion. Debate is fruitless because regardless of the merits of the issue, no amount of discussion is going to change anyone’s mind. Debates on the issue follow a predictable course, as though performed by predefined characters reading from a script.

The abortion debate has the two characteristics of a black hole. Since no minds get changed, events inside the debate have no effect on anything outside of the debate itself. And yet the abortion debate has a strong attractive power: any conversation that strays too close to the abortion issue will get sucked in, never to escape.

The same is true of the fair use debate. We see the same scripted arguments from the same characters. Some of these arguments are valid and some are not, but they keep coming back regardless. No minds are being changed anymore. And the fair use debate is sucking the energy out of other related debates.

I am not saying that these issues are unimportant. I am not saying that it doesn’t matter who is right. I am not saying that we should surrender and concede the field to the other side.

What I am saying is this: if you can make your argument without dragging in fair use, try to do so. Don’t let your argument get sucked into the black hole.

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More on Unbreakable DRM

December 5, 2002 by

Ernest Miller at LawMeme likes my explanation of why unbreakable codes don’t mean unbreakable DRM. But he takes me to task for writing a posting that ignores fair use and assumes that the customer is the enemy.

I guess I should have been more explicit about my assumptions. I agree that fair use is important and that treating your customers like thieves is a dubious approach. The point I was trying to make is that even if you’re willing to ignore fair use and even if you’re willing to treat your customers as enemies, you still can’t build unbreakable DRM.

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Just Ask

December 4, 2002 by

Sasha Volokh tells an amusing story about asking record companies for permission to tape recorded music. Once they realized he was serious, the companies almost all gave him permission and thanked him for asking.

We should do more of this. When companies make silly overreaching claims about the extent of their copyrights, don’t just ignore them. Call them and ask for exceptions. Call WalMart and ask permission to tell your friends about their prices. (WalMart told FatWallet’s ISP that that’s infringement.) Call Turner Broadcasting and ask permission to fast-forward through the commercials in their shows. (Turner Broadcasting CEO Jamie Kellner told Cableworld that commercial skipping is illegal.) Call Adobe and ask permission to read their e-book of Alice’s Adventures in Wonderland to your kid. (One of Adobe’s licenses prohibited this.)

Don’t call these companies just to harrass them. But if you do want an exception to their stated rules, go ahead and call.

(If any of you do try calling, please let me know what happens.)

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You Are Where You Live

December 4, 2002 by

Ever wondered why you get so much junkmail that obviously isn’t designed for people like you? The website You Are Where You Live is an enlightening view into the world of marketing overgeneralization. Enter your ZIP code, and it will tell you which of about fifty demographic “clusters” you belong to, and what characterizes your cluster. It’ll even tell you about where you like to eat and what you read! I tried it out on myself and it was predictably wrong.

I am not where I live. Are you?

[link credit: Man Without Qualities]

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Why Unbreakable Codes Don't Make Unbreakable DRM

December 3, 2002 by

It’s commonly understood among independent security experts that DRM (i.e., copy prevention) technology is fundamentally insecure, at least based on today’s state of the art. Non-experts often misunderstand why this is true. They often ask, “When you say DRM is insecure, isn’t that just another way of saying that any code can be broken?” Actually, it’s not. Let me explain why.

First of all, unbreakable codes do exist. Claude Shannon proved (in the strict, mathematical sense of “proof”) in 1949 that a code called the “one time pad” cannot be broken by any method. One time pads reportedly are used on the Washington-Moscow “hot line”.

One time pads are rarely used in practice, because there are certain other codes that present other advantages and are nearly unbreakable. (By “nearly unbreakable” I mean that the odds of their being broken are so low that it is pointless to worry about that possibility.) These are the codes used in “secure” web transactions.

Yet unbreakable codes, whether theoretically impregnable or practically untouchable, do not imply that DRM is possible.

To understand why, imagine that you can build an impregnable armored truck. This truck can carry bags of money anywhere; and as long as you keep the doors closed nobody can rob the truck. The problem is that the truck is useless unless you open its doors. Suppose you want to carry the day’s sales from a WalMart store to the Bank. You have to open the doors at WalMart to put money in, and you have to open them again at the Bank to get the money out. Robbers can strike when you open the doors at WalMart or at the Bank.

The armored truck doesn’t solve your problem because it doesn’t provide end-to-end protection. The middle part of the money’s journey from customer to bank account is protected, but the first part and the last part of the journey happen outside the truck, and the money is vulnerable there.

The same is true for encryption-based DRM. End-to-end protection requires that the material be protected all the way from the performer, to the customer’s eyes and ears. If you leave the content unprotected anywhere along that path, it’s vulnerable. And encryption can’t protect the entire path, in the same way that the armored truck can’t protect the money’s entire path. You can’t seal the content inside its envelope of encryption until after it has been recorded, and you have to unseal it before you can play it for the customer.

The lack of end-to-end protection is especially serious for DRM systems, where one of the endpoints is under the control of the customer – who is the presumed adversary. It’s as if, in the armored-truck scenario, a criminal had control over the bank. If you have to open the truck’s doors at the bank, and the bank is controlled by a bad guy, then you’re sunk. It doesn’t matter how strong your armored truck is.

This is the predicament that DRM faces. The content needs to be unwrapped at the endpoint, and the system doesn’t control the endpoint. The content is vulnerable, regardless of how strong your codes are.

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