[clug] Consume But Don't Try Programming [was viva la DMCA? [was: Against US-AU FTA Intellectual Property Clauses]]

Ian McCulloch ianmcc at lorentz.leidenuniv.nl
Sun Apr 11 17:34:27 GMT 2004

On Sun, 11 Apr 2004, Jepri wrote:

> Martin Pool wrote:
> > Three of the core freedoms of a western society are: free speech, free
> > markets, and stable property rights.  DMCA-like laws attack all three
> > freedoms: prohibiting speech (DeCSS), entrenching monopolies, and
> > retrospectively deleting property rights (reselling software you no
> > longer use.)  Put like that, it seems more important to me.
> OK, that one was just willfully deceptive.  CSS does NOT prohibit 
> freedom of speech.  You are talking about a 'right to listen'.  Every 
> western society I know of has laws specifically to prevent unauthorised 
> listening, e.g. wiretapping and privacy laws.

I don't know what you mean here.  The DeCSS case is about whether there 
is anything fundamentally different about computer software versus say a 
poem, and can the DMCA be used to make any of these illegal.

Now help me, Muse, for
I wish to tell a piece of
controversial math.

I don't see what this has to do with wiretapping and privacy laws per se.

> I put a home movie on my website, and encrypt it with CSS. I can give 
> the decrypt key to my friends and not to you, and you are just going to 
> have to wear that.  You have no right to view my movie, if I don't give 
> you access.

So, you are OK with my right do download it, but you think I have no right 
to decrypt it?  What is so special about CSS that makes it different from, 
say, ROT13, or even Navajo?

> If  you manage to get the key from my friends, or crack the encryption, 
> I think it's reasonable for me to come after you for damages. 
> Especially if I have a message on my webpage saying "Unauthorised 
> viewing prohibited".

Now you are really scaring me.

It would be a different situation of course if you required some 
authentication mechanism to actually download the file.  Cracking that 
would be somewhat analagous to breaking into your house and copying your 
personal documents.

But the situation you are describing is equivalent to you putting a big 
billboard in your front yard with an encrypted message on it, with a note 
attached saying "If you decrypt and read this message without 
authorization I will come after you and sue you".  Indeed, it sounds like 
you want to be able to do that even if there is no such note attached.

Just out of curiosity, which act do you think should be the illegal one, 
the act of decrypting the text, or the act of actually reading it?

> As for entrenching monopolies:  no again.  My computer can play movies 
> that haven't been encrypted, like the AniMatrix( 
> http://www.intothematrix.com/ ).  It would be a monopoly if someone 
> could prevent me or you from watching the animatrix.

That is like saying Microsoft isn't a monopoly because anyone is free to 
go install Linux, or Standard Oil wasn't a monopoly because anyone was 
free to go and drill for their own oil.  In some very narrow literal 
definition of "monopoly" it is true, but that definition isn't 
particularly useful.

> And as for deleting property rights, I thought we were all agreed that 
> ideas and software aren't property.  Switching horses in midstream is a 
> clumsy maneuver, just like changing positions in a debate.

You are being disingeneous here.  He wasn't talking about software itself, 
but pre-packaged boxed software.  Most (all?) people on this list would 
agree that while a book is a real physical object to which one can easily 
associate property rights, extending that notion to the abstract text 
itself is harder.  That is why 'copyright infringement' and 'stealing' are 
two quite separate notions, however much various interest groups would 
like to equate the two.

> You use software under a license.  If your license doesn't allow you to 
> transfer the license (by selling it), then you can't.

Publishers tried to apply the same idea to books, up until around 100 
years ago when the right to resell books became firmly established.  
Actually, I'm not sure exactly how firm: looking at a lot of (mostly 
fiction) books, there is some text at the start "this book is sold on the 
condition that it is not lent, hired, resold, ....".  I always assumed 
that was never enforcable though.

While I agree that (in the absence of any physical packaging) software is 
very different to a book, I think the idea of whether licences should be 
able to prohibit such things as reselling, is not a dead issue.

> I remind you that you are only allowed to use Linux and its friends 
> under the terms of the GNU License.  If you think that's a mere 
> formality, I invite you to start selling Linux without source and see 
> how quickly you loose your license to use Linux.

I would try this, but I already know the answer: I would _never_ lose my 
license to use Linux, because the GPL doesn't cover usage at all.  The 
only thing that would happen is the copyright holders of Linux would be 
able to sue me for copyright enfringement.

> Just because you like the GNU license more than the restrictive 
> shrink-wrap license most software has does not give you the right to 
> rewrite the shrink license to be more in your favour.

But shrink-wrap licenses usually depend on contract law, and argue that 
clicking 'yes' or whatever is equivalent to you signing a contract with 
the supplier.  The GPL is completely different and only uses copyright 

> >>You are free, right now, and you will be free under the FTA.
> > 
> > <1984>We have always been at war with Eastasia</1984>
> I think we need to extend Godwin's law.  I make a few reasonable, on 
> topic points ( a first, I know ),  and you start quoting George Orwell 
> at me.  If you were implying that just like in the book 1984, the 
> government (or me) is rewriting history, let everyone know about it on list.
> Or is it chicken little time already?  Aaagh! The sky is falling! 
> Aaaagh!  Aaaagh!  Big Brother is watching us!  Aaagh!  Aaagh!  Aaagh! 
> My toes are plotting to kill me while I'm asleep!
> > Right now I'm free to buy a DVD player that plays US DVDs I bought and
> > paid for.  Under the USFTA, I might not be.  Explain how this is good?
> I'm not sure about this one.  I didn't see anything that would stop you 
> importing a US PlayStation and using it to play US-encoded DVDs.
> People in the US already do this so they can watch Japanese movies that 
> are never released in the states.

I don't think it would be illegal to import a US PlayStation or a US DVD 
player, but it may well be illegal to sell such a player in Australia.  I 
havn't looked up the text but this is one of the stated aims of the DVD
CCA (Copy Control Association - the organization that licences CSS).

> > Right now if somebody patents an obvious/trivial software idea, I am
> > free to just smile wryly.  Under the USFTA, it might make it illegal
> > to write some free software.  Sounds bad to me.
> OK, that one is bad.  But most of the protests focus on not being able 
> to watch movies/listen to music.  For instance, one of the links Darren 
> quoes ( http://www.linux.org.au/fta/ ), starts off by announcing that 
> the FTA will crush open source.

If Microsoft launches a big software patent action against open source 
software, then this might be true.

> Unfortunately it then insanely jumps to babbling about how you won't be 
> able to play DVDs in your DVD player.

On a linux.org.au site it is reasonable to suppose that they mean "play 
DVD's on your Linux DVD player".  In which case, yes, it is true.

> WTF?  Local business will be crushed, the internet will be crippled, but 
> more importantly, nobody will be allowed to play DVDs?

I can't see anything suggesting that on the page.  If you can provide a 
specific link/reference ?

> I urge everyone NOT to sign the petition, until they come up with one 
> that actually represents OSS developers and users rather than whiney 
> people who want to watch DVDs on their laptops and play playstation 
> games that they aren't supposed to.
> Not only that, the petition veers into actual craziness in at least one 
> place.  The petition is just plain embaressing.

Which place were you referring to?


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