[clug] Re: A most interesting read, most interesting

Michael Cohen michael.cohen at netspeed.com.au
Fri Dec 29 14:19:07 GMT 2006

# warning: long 1am runt.

  Your views on this are also shared by Eben Moglen if I recall correctly, who
  has given a talk in canberra some years ago.  

  From a social point of view, the law needs to balance the needs of the
  creator to make money from their work with the needs of society to further
  develop their work. This balance is particularly imporatant in the fields of
  inventions and patents, because a patent effectively stops people from
  further developing inventions which are similar in concept but slightly
  different. Patents are therefore designed to be limited in time in order to
  allow others to continue with the development of the ideas. Imagine for
  example a patent on a new kind of internal combustion engine - sure its
  important that the inventor get a monopoly on the product so they can make
  moeny off it, but its also important that people be allowed to further refine
  the engine and install it in newer cars so that market competition can bring
  the engines cost down.

  There is a tendency in many industries to acquire patents as a way to either
  attract investors or just to control competitors in the market place - this
  is a misuse of the idea of patents because the patent holder does not intend
  to produce anything from it- just to stifle legitimate development in the
  field. This is why patents are designed to be expensive and last a relatively
  short time (7 years? or is it 10 years?). This is to allow competitors to
  mass produce the thing if nothing has been done sooner.

  Now software patents dont work because the software development life cycle is
  so short (a 10 yo software is not commonly relevant). So in the software
  worlds patents are used to stop development and maintain market control
  rather than to make money off it. (but thats a whole other story).

  Copyright is a little different because it deals with creative work. And its
  the actual copying of the specific work that is prohibited not the
  development of similar work which is derived from it. (Imagine a patent was
  taken out on the movie Ants, then no other movie could be make about ants for
  10 years. But copyright in the movie just relates to the specific movie, and
  other authors are allowed to make other movies about ants, even very similar
  in storyline/ideas).

  So the balance in the copyright case is typically set far to the favour of
  the author - the author maintains copyright in the work for 50 years after
  their death. After that, society gets it - presumably because the author cant
  benefit from it, and we need to have works passed into our culture (imagine
  having to pay copyright royalties for shakespear??). Disney has changed these
  laws because they dont want mickey mouse to become public domain, which shows
  how the balance is shifting even further towards the author.

  So there is no question in copyright about who has the right to copy the work
  and therefore sell and profit from it. The problem becomes what happens
  _after_ the work has been sold. Traditionaly, copyright law deals with the
  right to create copies of the work for the purpose of selling. But once you
  buy the work (and hence pay the author) how you use it is up to you. You may
  choose to throw it in the bin, burn it at the stake or watch it 20 times a
  day, the author has no say about it. So long as you dont produce copies of
  the work (and here the idea is that you dont take profits away from the
  author), copyright law has nothing to do with it.

  So under the normal copyright law - if you want to watch it under linux, you
  can, as long as you dont make a copy of the work or broadcast it publically
  etc (because that impacts on the authors earning ability). If you want to
  sell, you can, if you want to lend it to your friend you can - and the author
  has no power to stop you. You effectively own your copy in that you can do
  what you like with your copy.  

  Traditional copyright law also has some fair use exceptions. For example, you
  may lend the work in a library, study it, review it etc. DRM effectively
  kills those exemptions.  

  DRM changes the rules by imposing conditions on you after the sale. This goes
  outside the realm of copyright law (because its not about copies).

  This is the big problem with DRM and is simply one aspect of a shift in the
  balance of copyright law. As other people pointed in this thread its not the
  end of the world, and there are other larger issues to worry about. This
  trend simply upsets the delicate balance and shifts many rights to the
  authors. Unfortunately, although it may seem fair to the authors, it will
  actually negatively impact the technological development of the music and
  film industries.

  DRM stops innovation because it allows content producers to monopolise the
  market by forcing hardware manufacturers to be controlled by content producer
  cartels. Hardware manufacturers can only produce hardware which is approved
  by the traditionally minded content producers, which tradtionally are scared
  of any technological advancement. For example PVRs would never be allowed to
  be produced if it were up to the content producers. By using DRM they can
  stop these kind of innovations. New content producers will find it hard to
  enter the market because they can not produce their content in a DRM
  compliant manner - which makes the monopolies even larger etc.  

  In the end, slow changing monopolising cartels always destroy innovation in
  their industry because new vibrant players are not allowed in. We are seeing
  this already, as some people pointed out - the quality of music and movies
  has been very low for some years now, with the same old crap coming out of
  hollywood, and the music industry not doing any better. 
  Whats funneir is that DRM will hurt artists very badly in their heap pocket.
  For example, I recall some years ago an artist called Nora Jones was
  extremely popular in the states. Her CD was released as a standard CD in the
  states and she went to number 1 for many weeks there. In Australia, however,
  it was impossible to buy her CD, because the local market was released a low
  quality optical disc (Those are the "copy protected" cd looking things you
  sometimes see - its not a CD because it has far lower quality and does not
  comply with the cdrom specifications owned by phillips so it doesnt get the
  cd logo). I think she got lots of air time but was never as successful in
  australia as in the US. Most people would not buy it due to the format. I
  for one want to listen to music on my ipod/mp3 player, car mp3 jukebox etc.
  So I _need_ to be able to rip it into mp3 or similar. A copy protected CD is
  absolutely no use to me no matter who the author is. Not that I admit being
  inclined to that sort of music (I find her really boring), but that decision
  has cost the artist. In recent times I noticed that its pretty rare to see
  "copy protected" optical discs for that very reason - its just not worth it
  for the losses in revenue for the artist.

  Personally, If I cant watch high quality HD DVDs on my linux box - i wont be
  buying any. Mostly because its impractical for me to install windows for the
  sole purpose of watching HD DVDs. I havent seen anything coming out of
  hollywood in recent years, that would make me care too much about not owning
  it anyway 

  Similarly, for most people, if they need to spend too much on new hardware to
  be able to watch HD DVDs, they wont. This means that the HD DVD format will
  be still born - have a little faith in economic selection.

On Fri, Dec 29, 2006 at 11:52:42PM +1100, Peter Anderson wrote:
> This is (generally) a most interesting debate. However, I find Sam 
> Couter's views about the ownership of individual (and corporate) 
> creativity to be quite unusual. Over my working life I have been a 
> design engineer, a Patent Examiner (not for very long) and a software 
> programmer (and a senior public servant, but we won't dwell on that). As 
> a former engineer and programmer and as a current web site designer 
> (admittedly for non-profit organisations) I would be very offended if 
> somebody claimed that my hard work and innovation was for nothing and 
> that the rest of the world has unfettered rights to that work and 
> innovation. In the case of a corporation (public or private), it spends 
> a great deal of its shareholders funds on developing 
> ideas/products/etc.; surely the corporation has the ownership of these 
> ideas and products.
> Now from my recollections as a Patent Examiner, its Sam's views that ARE 
> NOT CORRECT. The 'contract' or 'right' entered into between the inventor 
> of an idea and the State is for the State to provide a period of 
> protection for that idea (invention) so that the developer/inventor can 
> reap some reward for his efforts. In return the developer/inventor must 
> make all details of his idea/invention public. The trade-off is that the 
> developer/inventor gets a period of protection for the specific idea and 
> society benefits from its publication by allowing development of 'like' 
> ideas and inventions. This 'contract' between idea developer/inventor 
> and the State is based on an initial premise that the developer/inventor 
> actually owns the idea/invention, otherwise why is it necessary to form 
> the 'contract' (or grant the protection right).
> One other small point, this debate is too interesting to allow it to 
> degenerate into name-calling and nastiness. Sam, perhaps you might like 
> to tone-down some of your criticisms just a little so the rest of us 
> don't have to look at your views through your 'red mist'.
> Regards,
> Peter
> -- 
> Peter Anderson
> E: peter.anderson at internode.on.net
> W: http://www.users.on.net/~peter.anderson/ 
> <http://www.users.on.net/%7Epeter.anderson/>
> P: +61 (0)2 4472 2274
> M: +61 (0)418 249 648
> There is nothing more difficult to take in hand, more perilous to 
> conduct, or more uncertain in its success, than to take the lead in the 
> introduction of a new order of things — Niccolo Machiavelli, /The 
> Prince/, ch. 6
> -- 
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