[linux-elitists] point of order, Ogg Vorbis rules...and an experiment

Seth David Schoen schoen@loyalty.org
Fri Mar 1 13:37:57 PST 2002


Don Marti writes:

> Speaking of Unisys, here's Seth on the computer industry CEOs'
> letter to Congress regarding SSSCA.  (Personally, I didn't like it
> even _before_ I saw Unisys's CEO signed it.)
> 
> http://vitanuova.loyalty.org/2002-02-28.html

So, there's also some discussion of exactly what Intel had to say.

http://www.siliconvalley.com/mld/siliconvalley/2764054.htm

http://cryptome.org/sssca-promo.htm#vadasz

(the "#vadasz" anchor may not work)

John Gilmore and I have been exchanging e-mail with Dan Gillmor about
this.  On the one hand, the Intel testimony is _far and away_ the most
radical position yet taken by a major technology company.  It also
expresses skepticism that existing DRM goes too far.

On the other hand, Intel also continues to take the line that
co-operation with the copyright industries on DRM is important;
Intel's testimony seems to vacillate between "Hollywood has no right
to tell us what to do" and "like any responsible company, we are
already doing what Hollywood wants".

I'm tempted to suggest, Don, that you come with us to some CPTWG
meetings.  (I don't know whether _Linux Journal_ would want to pay
for your travel and admission.  We have been struggling with the fact
that CPTWG partipicants have claimed that CPTWG has a rule against
journalists, although there is no public documentation of any such
rule.  I don't most want you to come in order to write it up for _LJ_,
but rather in order to see what goes on there and talk to other people
who attend.  For example, I'd be content if you came on behalf of
SVLUG.)

There is a clearly articulated contrast between the CE/IT industries'
position and the copyright industries' position.  The CE/IT industries
are holding fast (except when they don't) to a "no mandate" position,
consistent with Universal v. Sony, 464 U.S. 417 (1984), and the DMCA's
"no mandate" clause, 17 USC 1201(c)(3):

   Nothing in this section shall require that the design of, or design
   and selection of parts and components for, a consumer electronics,
   telecommunications, or computing product provide for a response to
   any particular technological measure, so long as such part or
   component, or the product in which such part or component is
   integrated, does not otherwise fall within the prohibitions of
   subsection (a)(2) or (b)(1).

The CE/IT view is that this means that, for example, nobody could be
required to detect watermarks in unencrypted content, or to implement
any particular DRM scheme, or any DRM scheme at all.  To put it
another way, the DMCA provides for the possibility that someone can
"own" a media format, and control interoperability with it.  But it
doesn't mandate that products support any particular media format.

This means that you can still produce completely DRM-free devices, but
they are prohibited from interoperating with "owned" formats like DVD
Video with CSS, or RealAudio.  There is no limitation on your ability
to make a hard drive or an iPod or a ReplayTV when they don't use
those formats.  To many people in the CE and IT worlds, this seems
vaguely reasonable: "If you don't like the conditions placed on
Windows Media Audio, don't use it!"  (This kind of view goes hand in
hand with the suggestion that "If you don't like the conditions placed
on your use of that copyrighted work, don't use it!".)

The SSSCA, by contrast, is explicitly "mandate" legislation, which
says that everybody has to implement particular DRM schemes, and you
can't make (certain) products without them, period.  In this sense,
there is to be no market competition among DRM schemes or possibility
of a consumer boycott (which is definitely a possibility under the
DMCA, although it would be more realistic if there were more
competition today, and perhaps less vertical integration of
industries).

CE/IT people have been fairly adamant about the "no mandate" concept,
while copyright people have been saying that the CE/IT industry should
simply not expect to be free from government technology regulation,
considering that other technologies have been extensively regulated.

EFF is on the "radical fringe" because we think that the DMCA's
approach is _already_ a "mandate" because we think that reverse
engineering, free software, and open standards are normal, legitimate
human activities which are being hindered by that law.  To put this
another way, we are skeptical of the idea of owning a media format.

I need to hurry up and write my own "constitutionalization of
technology law" paper.  One studio lawyer at CPTWG on Wednesday had
_no idea at all_ why an EFF lawyer would believe that there were free
speech problems with technology regulation itself (as opposed to,
perhaps, certain effects of technology regulation).  Tragically, the
studios are steeped in the attitude that, in effect, the first
amendment protects _their_ industry's right to exist and to produce
its products without government content mandates -- but that this
protection doesn't extend to technologists, and that technical freedom
isn't even contemplated by that amendment.  I am serious.  The
question, the problem, is not even entering their minds; it is not
even on the radar.

If you push hard with some of the world's finest and most expert
engineers and lawyers -- which we did on Wednesday -- then you can,
after an hour or so, get some other smart engineers and lawyers to
start thinking about the free speech problems with the DMCA and SSSCA.
What will it take to make the public or legislators think about them?

-- 
Seth David Schoen <schoen@loyalty.org> | Reading is a right, not a feature!
     http://www.loyalty.org/~schoen/   |                 -- Kathryn Myronuk
     http://vitanuova.loyalty.org/     |



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