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What's Wrong With Copy Protection
What's wrong?
Ron Rivest asked me, "I
think it would be illuminating to hear your views on the differences between the
Intel/IBM content-protection proposals and existing practices for content
protection in the TV scrambling domain. The devil's advocate position against
your position would be: if the customer is willing to buy extra, or special,
hardware to allow him to view protected content, what is wrong with that?"
First, I call it copy protection rather than content protection, because
"content" is such a meaningless word. What the technology actually
does is to deter copying. Such technologies have a long history in computing,
starting with the first microcomputers, minicomputers, and workstations. Except
in very small niches, all such systems ultimately failed. Many failed because of
active opposition from their buyers, who purchased alternative products that did
not restrict copying.
There is nothing wrong with allowing people to optionally choose to buy
copy-protection products that they like. What is wrong is when:
Competing products are driven off the market
What is wrong is when people who would like products that simply record bits, or
audio, or video, without any copy protection, can't find any, because they have
been driven off the market. By restrictive laws like the Audio Home Recording
Act, which killed the DAT market. By "anti-circumvention" laws like
the Digital Millennium Copyright Act, which EFF is now litigating. By Federal
agency actions, like the FCC deciding a month ago that it will be illegal to
offer citizens the capability to record HDTV programs, even if the citizens have
the legal right to. By private agreements among major companies, such as SDMI
and CPRM (that later end up being "submitted" as fait accompli to
accredited standards committees, requiring an effort by the affected public to
derail them). By private agreements behind the laws and standards, such as the
unwritten agreement that DAT and MiniDisc recorders will treat analog inputs as
if they contained copyrighted materials which the user has no rights in. (My
recording of my brother's wedding is uncopyable, because my MiniDisc decks act
as if I and my brother don't own the copyright on it.)
Pioneer New Media Technologies, who builds the recently announced recordable
DVD drive for Apple, says "The major consumer applications for recordable
DVD will be home movie editing and storage and digital photo storage". They
carefully don't say "time-shifting TV programs, or recording streaming
Internet videos", because the manufacturers and the distribution companies
are in cahoots to make sure that that capability never reaches the market.
Even though it's 100% legal to do so, under the Supreme Court's Betamax
decision. Streambox built software that let people record RealVideo streams on
their hard disks; they were sued by Real under the DMCA, and took it off the
market. According to Nomura Securities, DVD Recorder sales will exceed VCR sales
in 2004 or 2005, and also exceed DVD Player-only sales by 2005. (http://www.kipinet.com/tdb/1000/10tdb04.htm)
So by 2010 or so, few consumers will have access to a recorder that will let
them save a copy of a TV program, or time-shift one, or let the kids watch it in
the back of the car. Is anyone commenting on that social paradigm shift? Do we
think it's good or bad? Do we get any say about it at all?
Instead, consumers will have to pay movie/TV companies over and over for the
privilege of time-shifting or space-shifting. Even if they have purchased the
movie, and it's stored at home on their own equipment, and they have high
bandwidth access to it from wherever they are. This concept is called "pay
per use". It can't compete with "You have the right to record a copy
of what you have the right to see". These companies can't eliminate that
right legally, because it would violate too many of the fundamentals of our
society, so they are restricting the technology so you can't exercise
that right. In the process they are violating the fundamentals on which a
stable and just society is based. But as long as society survives until after
they're dead, they don't seem to care about its long-term stability.
Companies don't disclose copy-protection restrictions
What is wrong is when companies who make copy-protecting products don't disclose
the restrictions to the consumers. Like Apple's recent happy-happy web pages on
their new DVD-writing drive, announced this month (http://www.apple.com/idvd/).
It's full of glowing info about how you can write DVDs based on your own DV
movie recordings, etc. What it quietly neglects to say is that you can't use it
to copy or time-shift or record any audio or video copyrighted by major
companies. Even if you have the legal right to do so, the technology will
prevent you. They don't say that you can't use it to mix and match video tracks
from various artists, the way your CD burner will. It doesn't say that you can't
copy-protect your own disks that it burns; that's a right the big
manufacturers have reserved to themselves. They're not selling you a
DVD-Authoring drive, which is for "professional use only". They're
selling you a DVD-General drive, which cannot record the key-blocks needed to
copy-protect your own recordings, nor can a DVD-General disc be used as a
master to press your own DVDs in quantity. These distinctions are not even
glossed over; they are simply ignored, not mentioned, invisible until after you
buy the product.
It isn't just Apple who is misleading the consumer; it's epidemic. Sony
portable mini-disc recorders only come with digital input jacks, never
digital outputs. Sound checks in -- but only checks out in low-quality
analog formats. Intel touts the wonders of their TCPA (Trusted Computing
Platform Architecture). You have to read between the lines to discover that it
exists solely to spy on how you use your PC, so that any random third party
across the Internet can decide whether to "trust" you -- the owner.
TCPA isn't about reporting to you whether you can trust your own PC (e.g.
whether it has a virus), it doesn't include that function. It exists to report
to record companies about whether you have installed any software that lets you
make copies of MP3s, or any free software to circumvent whatever feeble
copy-protection system the record company uses. Intel is pushing HDCP (High
Definition Content Protection) which is high speed hardware encryption that runs
only on the cable between the computer and its CRT or LCD monitor. The only
signal being encrypted is the one that the user is sitting there watching, so
why is it encrypted? So that the user can't record what they can view! If the
cable is tampered with, the video chip degrades the signal to "analog VCR
quality".
Intel is also pushing SDMI and CPRM (Content Protection for Recordable Media)
which would turn your own storage media (disk drives, flash ram, zip disks, etc)
into co-conspirators with movie and record companies, to deny you (the owner of
the computer and the media) the ability to store things on those media and get
them back later. Instead some of the stored items would only come back with
restrictions wired into the extraction software -- restrictions that are not
under the control of the equipment owner, or of the law, but are matters of
contract between the movie/record companies and the equipment/software makers.
Such as, "you can't record copyrighted music on unencrypted media". If
you try to record a song off the FM radio onto a CPRM audio recorder, it will
refuse to record or play it, because it's watermarked but not encrypted. Even
when recording your own brand-new original audio, the default settings for
analog recordings are that they can never be copied, nor ever copied in higher
fidelity than CD's, and that only one copy can be made even if copying is ever
authorized (if the other restrictions are somehow bypassed). Intel and IBM don't
tell you these things; you have to get to Page 11 of Exhibit B-1, "CPPM
Compliance Rules for DVD-Audio" on page 45 of the 70-page "Interim
CPRM/CPPM Adopters Agreement", available only after you fill out intrusive
personal questions after following the link from http://www.dvdcca.org/4centity/.
All Intel tells you that CPPM will "give consumers access to more
music" http://www.intel.com/pressroom/archive/releases/aw032300.htm).
Lying to your customers to mislead them into buying your products is wrong.
Scientific research is unpublishable
What is wrong is when scientific researchers are unable to study the field or to
publish their findings. Professor Ed Felten of Princeton studied the SDMI
"watermarking" systems in some detail, as part of a public study
deliberately permitted by the secretive SDMI committee, so they could determine
whether the public could crack their chosen schemes. (SDMI would not allow EFF
to join its deliberations, saying that we had no legitimate interest in the
proceedings because we weren't a music company or a manufacturer. There are no
consumer or civil rights representatives in the SDMI consortium.) Prof. Felten
was in the New York Times last week, saying the SDMI people and Princeton's
lawyers are now telling him that he can't release his promised details on what
was wrong with these watermarking systems, because of the Digital Millennium
Copyright Act. It's OK to tell the SDMI companies how easy it is to break their
scheme, but it isn't OK to tell the public or other scientific researchers.
Competition is prevented
What is wrong is when competitors are unable to build competing devices or
software, vying for the favor of the consumers in the free market. Instead those
devices are banned or threatened, and that software is censored and driven
underground. Such as the open-source DeCSS and LiViD DVD player programs. Such
as DVD players worldwide that can play American "Region 1" DVDs. EFF
spent more than a million dollars last year in defending the publisher of a
security magazine, and a Norwegian teenager, from movie industry attempts to
have them censored and jailed, respectively, for publishing and writing
competing software that lets DVDs be played or copied but does not follow the
restrictive contracts that the movie studios imposed on most players. The movie
studios spent $4 million on prosecuting the New York case alone. Few or no
manufacturers are willing to put ordinary digital audio recorders on the market
-- you see lots of MP3 players but where are the stereo MP3 recorders?
They've been chilled into nonexistence by the threat of lawsuits. The ones that
claim to record, record only "voice quality monaural".
Abuse of "copyright protection" rewards monopolies
What is wrong is when the controls that are enacted to protect the rights
reserved under copyright are used for other purposes. Not to protect the
existing rights, but to create new rights at the whim of the copyright holder.
Movie companies insisted on a "region coding" system for DVDs, because
they would make less money if DVD movies were actually tradeable worldwide under
existing free-trade laws. (They couldn't charge high theatre ticket prices if
the same movie was simultaneously available on DVDs, and they couldn't combine
the ad campaigns of the theatres and the DVDs if they waited a long time between
releasing it to theatres and releasing it to DVDs.) This system results in the
situation where a consumer can buy a DVD player legally, buy a DVD legally, and
put the two together, and the movie won't play. The user has every legal right
to view the movie, but it won't play, because if it did, movie companies might
make less money. Similar controls exist in DVDs to prevent people from
fast-forwarding past the ads or those nonsensical "FBI Warnings".
Microsoft built some deliberately incompatible protocols into Windows 2000 so
that competing Unix machines could not be used as DNS servers in some
circumstances. Microsoft released a specification but only under an encrypted
file format that claimed to require that readers agree not to use the
information to compete with them. When someone decrypted the trivial encryption without
agreeing to the terms, Microsoft threatened to use the DMCA to sue Slashdot,
the popular free-software news web site, who published the results. (Luckily for
us, Slashdot has a backbone and said "go ahead, we'll defend that
suit" and Microsoft chickened out.) Copyright doesn't grant the right to
prevent competition, or to restrict global trade -- but somehow the legislation
that was enacted to protect copyrights is being used to do just those things.
Social policy is created without public input
What is wrong is when social policy is created in smoke-filled back rooms,
between movie/record company executives and computer company executives, not by
open public discussion, by legislatures, and by courts. The CPRM specification,
for example, allows a distributor of a bag of bits (who has access to software
with this capability) to decide that future recipients will not be permitted to
make copies of that bag of bits. Or that two copies are permitted, but not
three. This policy is not legally enforceable, it was not created by law. The
law says something different. But the policy will be enforced by equipment built
by all the major manufacturers, because they will be sued by the movie/record
companies if they dare to build interoperating equipment that lets consumers
make three copies, or copies limited only by their legal rights. Is it
unexpected that such back-room policies end up favoring the parties who were in
the room, at the expense of consumers and the public?
Copyright's balance of benefits is lost
What is wrong is when the balance between the rights of creators and the rights
of freedom of speech and the press is lost. Any increase in the rights of
creators is a decrease in the public's right of free speech and
publication. Whenever copyrights are extended, the public domain shrinks. The
right of criticism, the right to dispute someone else's rendition of the truth,
is damaged. The First Amendment gives an almost absolute right to publish; the
Copyright clause gives a limited right to prevent publication by others. Any
expansion of the right to prevent publication diminishes the right to publish.
For example, few works created after 1910 have entered the public domain, if
their owners did not abandon their copyright, because as the years went by, the
term of copyright kept getting extended. But the copy-rights created by
technological restrictions are not even designed to end. There is nothing in the
SDMI or CPRM spec that says, "After 2100 you will be permitted to copy the
movies from 1910".
Beneficiaries are a tiny fraction of society
What is wrong is that a tiny tail of "copyright protection" is wagging
the big dog of communications among humans. As Andy Odlyzko pointed out, http://www.research.att.com/~amo/doc/eworld.html,
see "Content is not king" and "The history of communications and
its implications for the Internet"), "The annual movie theater ticket
sales in the U.S. are well under $10 billion. The telephone industry collects
that much money every two weeks!" Distorting the law and the technology of
human communication and computing, in order to protect the interests of
copyright holders, makes the world poorer overall. Even if it didn't violate
fundamental policies for the long-term stability of societies, it would be the
wrong economic decision.
Society can truly eliminate scarcity, but not this way!
What is wrong is that we have invented the technology to eliminate scarcity, but
we are deliberately throwing it away to benefit those who profit from scarcity.
We now have the means to duplicate any kind of information that can be compactly
represented in digital media. We can replicate it worldwide, to billions of
people, for very low costs, affordable by individuals. We are working hard on
technologies that will permit other sorts of resources to be duplicated this
easily, including arbitrary physical objects ("nanotechnology"; see http://www.foresight.org).
The progress of science, technology, and free markets have produced an end to
many kinds of scarcity. A hundred years ago, more than 99% of Americans were
still using outhouses, and one out of every ten children died in infancy. Now
even the poorest Americans have cars, television, telephones, heat, clean water,
sanitary sewers -- things that the richest millionaires of 1900 could not buy.
These technologies promise an end to physical want in the near future.
We should be rejoicing in mutually creating a heaven on earth! Instead, those
crabbed souls who make their living from perpetuating scarcity are sneaking
around, convincing co-conspirators to chain our cheap duplication technology so
that it won't make copies -- at least not of the kind of goods they
want to sell us. This is the worst sort of economic protectionism -- beggaring
your own society for the benefit of an inefficient local industry. The record
and movie distribution companies are careful not to point this out to us, but
that is what is happening.
If by 2030 we have invented a matter duplicator that's as cheap as copying a
CD today, will we outlaw it and drive it underground? So that farmers can make a
living keeping food expensive, so that furniture makers can make a living
preventing people from having beds and chairs that would cost a dollar to
duplicate, so that builders won't be reduced to poverty because a comfortable
house can be duplicated for a few hundred dollars? Yes, such developments would
cause economic dislocations for sure. But should we drive them underground and
keep the world impoverished to save these peoples' jobs? And would they really
stay underground, or would the natural advantages of the technology cause the
"underground" to rapidly overtake the rest of society?
I think we should embrace the era of plenty and work out how to mutually live
in it. I think we should work on understanding how people can make a living by
creating new things and providing services, rather than by restricting the
duplication of existing things. That's what I've personally spent ten years
doing, founding a successful free software support company. That company, Cygnus
Solutions, annually invests more than $10 million into writing software,
giving it away freely, and letting anyone modify or duplicate it. It funds that
by collecting more than $25 million from customers, who benefit from having that
software exist and be reliable and widespread. The company is now part of Red
Hat, Inc -- which also makes its living by empowering its customers without
restricting the duplication of its work. It's no coincidence that the open
source, free software, and Linux communities are among the first to become
alarmed at copy protection. They are actively making their livings or hobbies
out of eliminating scarcity and increasing freedom in the operating system and
application software markets. They see the real improvement in the world that
results -- and the ugly reactions of the monopolistic and oligopolistic forces
that such efforts obsolete.
Converting the whole world to operate without scarcity is a huge task. Such a
large economic shift would take decades to spread through the entire world
economy, making billions of new winners and new losers. We will be extremely
lucky if by 2030 we are prepared to end scarcity without massive social
turmoil, including riots, civil unrest, and world war. If we are to find a
peaceful path to an era of plenty, we should be starting HERE AND NOW,
transforming the industries we have already eliminated scarcity in -- text,
audio, and video. Companies that can't adjust should disappear and be replaced
by those who can. As these whole industries learn how to exist and thrive
without creating artificial scarcity, they will provide models and expertise for
other industries, which will need to change when their own inefficient
production is replaced by efficient duplication ten or fifteen years from now.
Relying on copy-protection now would send us in exactly the wrong direction!
Copy protection pretends that the law and some fancy footwork with industrial
cartels can maintain our current economic structures, in the face of a hurricane
of positive technological change that is picking them up and sending them
whirling like so many autumn leaves.
Summary
This may be a longer discussion than you wanted, Ron, but as you can see, I
think there are a lot of things wrong with how copy protection techologies are
being foisted on an unsuspecting public. I'd like to hear from you a similar
discussion. Being devil's advocate for a moment, why should self-interested
companies be permitted to shift the balance of fundamental liberties, risking
free expression, free markets, scientific progress, consumer rights, societal
stability, and the end of physical and informational want? Because somebody
might be able to steal a song? That seems a rather flimsy excuse. I await your
response.
John Gilmore
Electronic Frontier Foundation
Copyright 2001 John Gilmore
This document is free software; you can redistribute it and/or modify it
under the terms of the GNU General Public License as published by the Free
Software Foundation; either version 2 of the License, or (at your option) any
later version.
This document is distributed in the hope that it will be useful, but WITHOUT
ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS
FOR A PARTICULAR PURPOSE. See the GNU General Public License for more details.
You should have received a copy of the GNU
General Public License along with this document; if not, write to the Free
Software Foundation, Inc., 59 Temple Place - Suite 330, Boston, MA 02111-1307,
USA.
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