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Wednesday, November 19, 2008
Copyright Anti-Circumvention: Police State in Action
I think a lot of libertarians have been ignorant to legal developments surrounding copyright in recent years. Much of the animus against the DMCA (the US Digital Millenium Copyright Act) and the WIPO (World Intellectual Property Organization) treaty is poorly understood.
There are however, two prevalent sides to this debate. On one side, you have a bunch of technophiles who are jumping up and down over their ostensible right to backup content they buy. On the other side, you have business-minded folk who say "too bad, content producers need to make a living." As a capitalist, I have no problem with the latter sentiment. But as a libertarian, I have a problem with the legal sentiment, that any and all circumvention of "digital locks" is a crime.
We are closing in on a new era in commercial copyright distribution, whereby, your options as a consumer to use content will be severely restricted through license-enforcement technologies. One in particular -- and one that is now starting to see early use -- is HDCP (High-bandwidth Digital Content Protection). It's a sophisticated technology, but it's purpose is basically as such: to make sure, when you view digital content, you are viewing it on a device which has been pre-authorized by the content producer.
Within the past few days, users of Apple's iTunes online Movie Store have felt their first "bag of hurt" in regards to the pervasiveness of HDCP; purchasers and renters of the movie Hellboy 2 have found themselves seemingly unable to play the movie -- once paid for -- on what iTune's ominous error message calls "a display that is not authorized to play protected movies".
Now, the film company and Apple have every right to do this. They are selling their copyrighted work, and their technology. You have no right to expect them to do anything else. It's simply: their property. As a libertarian, I have absolutely no qualms with this.
The issue for me arises, when the government steps in and decides to criminalize the circumvention of above technology. Now, the argument is generally, that I do not own a movie when I pay for it; I have paid for a license to view it. The problem that I have, is that it's a conditional license, which carries with it a multitude of conditions that go far beyond the basic premise that I cannot redistribute it. It goes so far as to say: when and where I can view it, how I can view, and only under what combinations of such that I can view it. Once again, they have a right to stipulating such conditions in their license. My problem is: these are implied licenses -- that almost nobody understands, that people have not actually agreed to in the first place -- are now becoming enforced by the government.
When you go to the video store and rent a movie, you may only per the license, play the video in your own home. If you take the video to a banquet hall and play it to fifty or so people, you are in violation of the license, and you can be sued for copyright infringement. Yet, you entered into no contract. You did not sign a contract with the content producer, binding you to any such agreement. No, the content producer took your money, and is relying exclusively on legislated copyright law to enter you into this agreement with or without your knowledge or consent. These may be referred to as legally-binding non-transferrable licenses.
I might not even think that's unreasonable. But in the digital age, "implied contracts" go a lot further. In fact, they now transcend civil law in some cases and fall right into the category of criminality.
Enter: Anti-circumvention laws. These laws often represent criminality. If you make any attempt to bypass the above error message and play the movie in spite of it's plea that you may not, you are a criminal. The state will act as an agent for the copyright holder, pit a state prosecutor against you, and even potentially seek a jail term along with statutory fines.
It gets worse. You don't even have to engage in the act of circumventing. You could simply figure out how you would in your own head, publish the methodology, and you're equally guilty of a crime. Pretty cool, huh?
No, you haven't stolen anything. In fact, you've paid the content producer money. But you've engaged in the dissemination of information, that has the potential to be used for the act of copyright violation. Sounds a lot like the justification for Section 13(1) of the Canadian Human Rights Act, doesn't it? Something that is likely or may lead to copyright infringement as opposed to something which may likely lead to hatred or contempt.
It's important for libertarians to stay cognizant of this pertains to our individual sovereignty, and the role of the state in this issue. Instead of sacrificing free speech on the mantle of hate, we're sacrificing it on the mantle of anti-circumvention of copyright enforcement technology. That's a mouthful. And I think one would be wrong to try and make the argument that this has anything to do with copyright. After all, we're not talking about copying anything here, are we?
Posted by Mike Brock on November 19, 2008 in Current Affairs | Permalink
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Comments
It's worth mentioning that in Canada, circumventing DRM is not in itself a crime... yet. However, the Conservative government's Bill C-61, which died on the order paper due to our latest election, would have given Canada literally the strictest and most absolute legal backing of DRM in the world (the American DMCA actually has some exceptions)
On the other hand, the Liberal government before that (also unsuccessfully) introduced a copyright reform bill that would have lived up to Canada's international obligations WITHOUT blanketly criminalizing circumvention.
I'm not trying to be partisan (and I'm sure as hell not a Liberal) but this is not an issue in which the Tories are on the right page.
Posted by: AWJ | 2008-11-19 2:39:59 PM
If you put a padlock on your door and some thief in th night saws it apart to gain access to your goods or services in order to steal them..thats a crime . One does not call Acme lock company for redress, one calls 911 and enlists the Police.
What is the difference between a physical metalic lock and a electronic digital lock? Not much or nothing - if it isn't your property its someone elses.Don't help yourself to another persons goods or services without permission - just because you have the means and muckle to break a security barrier doesn't mean its OK to do so.
The very fact that one has to tamper with a security system to tresspass is your first clue that you shouldn't be there doing that.
Copyright law reflects this..if it isn't your intellectual property, its someone elses. Don't help yourself to someone elses property- or face the consequences.. Hang all Pirates
Posted by: 419 | 2008-11-19 3:13:23 PM
419, I think you completely glazed over the point I was trying to make. Start reading from the fourth last paragraph, and try again.
Posted by: Mike Brock | 2008-11-19 3:21:12 PM
And by the way 419, that's a horrible analogy. Simply because I'm not talking about stealing anybodies property.
A better analogy would be going to a Motel, paying for a room, and the Motel having a "no food or drink in the room" rule. They'd have every right to ask me to leave if I violated the rules, but it wouldn't automatically be a crime by virtue of the contract violation.
If you're going to say someone viewing a movie on an "unauthorized display" is tantamount to breaking and entering or robbery, you must be prepared to say that eating or drinking on a private property without permission is tantamount to the same thing. I don't think it is. It's reneging on a contract, at most, and the owner of the property may ask me to leave, at any time, for any reason. But that doesn't mean I committed the crime of trespass or theft.
If the purpose of the "no food or drink rule" is to avoid the owner of the establishment the costs of clean up or replacement of items due to damage, then the owner could pursue a civil claim to be compensated for any costs therein.
I don't think anybody would agree that a criminal act had taken place, though.
What's interesting is that people are suggesting that copyright is this "special" thing, that deserves the protection of criminal law. It's so "special" in fact, that it deserves protection from people even "contemplating" circumvention of license enforcement technologies.
Posted by: Mike Brock | 2008-11-19 3:24:15 PM
All this approach will do is increase piracy. Most people, given half a chance and reasonable rates and rules, will opt to do the right thing. They would prefer the convenience of digital media with the peace of mind of duly purchased content. But conditions like these will only hurt the market for mobile media, not help it. Remember when blank cassette tapes cost more than prerecorded ones? Or the recording industry wanted to slap, what was it, a $75 surcharge on every MP3 player?
My wife moved ITunes to a new computer yesterday, and couldn't play her songs without reauthorizing them for play on that computer. I've had DVDs go south (fortunately no out-of-print ones, yet), and technically I'm not allowed to copy them to make backups, so if they go out of print, I'm screwed. There's always the used market, but typically only the more popular titles turn up there. The rarer ones get hoarded.
So no thanks, record labels. I'm sticking to my old-fashioned MP3s. Not as trendy as M4As and Oggs, but completely portable, the way digital files were meant to be. We all know that the actual artists get only a small fraction of the total profits, with the great majority going to you. Which is becoming increasingly redundant--and hard to justify--in this age of an increasingly democratic and non-elitist media.
Posted by: Shane Matthews | 2008-11-19 3:42:29 PM
P.S. My MP3's were either ripped from CD's I already own or purchased and downloaded. As I said, I'm not looking for a free ride. I just don't think the car maker should be able to put a perimeter check on my vehicle that makes it conk out if I drive it in a different city without getting authorization first.
Posted by: Shane Matthews | 2008-11-19 3:45:03 PM
Well Mike- no shoes , no shirt no service.
Posted by: 419 | 2008-11-19 3:51:32 PM
Copyright is so
" special" it requires criminal sanctions and the presence of the courts and police to enforce it ..you bet,more nail belts on the information highway if necessary =
because if if the ( c ) authorities _weren't there to protect the exchange and us culture makers caught a thief stealing honey from the hive- we would merrily sting you to a retarded pulp if we ever caught you.
Our making a living is your entertainment shortcut ?
- thats a No No
go back to smuggling Doritos into your Motel room
Posted by: 419 | 2008-11-19 4:00:28 PM
"All this approach will do is increase piracy. Most people, given half a chance and reasonable rates and rules, will opt to do the right thing. They would prefer the convenience of digital media with the peace of mind of duly purchased content. But conditions like these will only hurt the market for mobile media, not help it. Remember when blank cassette tapes cost more than prerecorded ones? Or the recording industry wanted to slap, what was it, a $75 surcharge on every MP3 player?"
Yes, I went back and added it up... my wife and I have spent nearly $600 on movies from the iTunes Movie Store as opposed to going to the video store. We watch a movie at least every two nights. We've been loyal customers.
Then, all of a sudden: "Hey, your 50 inch LCD connection isn't secure enough to play our content!"
Now, the fact is, my LCD *is* in fact HDCP-compliant. The problem is that I connect it via an analog VGA connector from my computer. Unfortunately my LCD does not accept DVI (only component, HDMI, and VGA), and my Laptop is only DVI-out, so I use a DVI-to-VGA connector to push the movies up on my screen.
It was great for a while. I had two little cables behind my entertainment center... one SP/DIF optical (for audio) and the VGA connector for video. I would rent the movie, plug in the laptop, and watch the movie.
The industry got it's money, I got my movie, and everyone was happy.
But a funny thing happened on the way. The movie industry decided... VGA is not "good enough" to protect their content from privacy... so I need to upgrade to better hardware or stop watching their movies.
Thanks!
Posted by: Mike Brock | 2008-11-19 4:00:36 PM
>>A better analogy would be going to a Motel, paying for a room, and the Motel having a "no food or drink in the room" rule.
No, a better analogy would be buying a car and only finding out afterwards that the maker designed the gas cap so that you could only fill it with gas from their affiliated gas stations. And that they claimed the right to prosecute you if you modified your own car in order to exercise your free choice of gasoline suppliers.
Publishers have been pushing the "copyright means you don't own it, only license it" claim for literally centuries--some books from the 19th century actually had Microsoft-esque "license agreements" on their inside covers--but it's always been 100% bullshit. When you buy a book or a music recording, you own it, just like you own a car or a pair of pants or a toaster or a shotgun. Copyright law prohibits you from doing certain things with your book even though it's your property, just like traffic safety laws restrict how you can drive your car and gun laws restrict what you can do with your shotgun. But those restrictions are set by the law, not by the mere whim of the seller.
The notion that the reason you have to pay a fee to play your CD collection in public is because your CDs are actually still the property of Sony and Universal and Warner and BMI and you're only "licensing" them is lunacy, like the notion that the sun comes up each morning because Pharaoh wills it to be so.
Posted by: AWJ | 2008-11-19 4:11:12 PM
Now, the fact is, my LCD *is* in fact HDCP-compliant. The problem is that I connect it via an analog VGA connector from my computer. Unfortunately my LCD does not accept DVI (only component, HDMI, and VGA), and my Laptop is only DVI-out, so I use a DVI-to-VGA connector to push the movies up on my screen.
Posted by: Mike Brock | 19-Nov-08 4:00:36 PM
HDMI IS DVI with aded DRM.
So if you can produce a DVI out signal you should be able to plug it into the HDMI in port on the TV. I do own such a cable as it is at times nicer to watch something on the 46" than sitting on the computer.
Problem is: If your graphics card doesn't support HDMI then you're still SOL.
BTW, as far as analogies go:
You buy item X, but they do not give you a key with the box it is in. Now, the box is transparent, you can see what you've bought, but you can't touch it or manipulate it and breaking the lock on the ase to get to your item is a crime.
Posted by: Snowrunner | 2008-11-20 11:37:12 AM
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