RE: Why DRM exists [was Re: Flame Linus to a crisp!]

David Schwartz
2003-05-01T22:56:14Z

> It truth, there is no such thing as "intellectual property" by the correct
> legal definition of property.

Nonsense. Intellectual property is, conceptually, a form of contractual
property. If I pay you $10 to mow my lawn tomorrow, my right to compel you
to mow my lawn (or have you pay me damages) is a property right.

If I develop an idea, I have the absolute right to the contents of my mind
and cannot be compelled to disclose the idea. Because the greater includes
the lesser, the right to not disclose the idea includes the right to
disclose the idea under terms, pursuant to a contract (actual or implied).

Most property rights are contractual. You come to own property because you
contract for it.

> There was also no intent to create
> "intellectual property" in the minds of the founders of the United States.

Because there was no need for them to do so. If I have possession of an
idea and agree to tell you the idea for $10 provided you agree not to
disclose the idea to anyone else, I don't need any special laws other than
the normal laws that permit me to make and enforce contracts.

> The truth of the matter is that Digital Restriction(*) Management
> isn't even
> about copyright. We are in the berth pains of the creation of
> "accessright"
> law, and nobody has yet demonstrated that such a body of law is, well,
> legal... let alone necessary for any purpose.

I think that you are right conceptually. Access restrictions are purely
contractual things and more obviously so. If I put a security restriction on
a CD and sell it to you, there's an implied agreement that you will respect
the restricitions. If I really wanted to, I could have you sign an agreement
to that affect.

> The fundamental problem with applying property law (et al) to the
> domain of
> ideas is that you can not affect a clean and complete transfer of
> possession.

This would apply to employment contracts too.

> Anything "intellectual" exists in the pure domain of thought
> (hence the root
> "intellect" 8-) and the facts remain that one party, having processed an
> idea (or set thereof) can not "willfully and completely
> surrender" the idea
> out of their head and into someone else's.

This is true for employment to. In fact, it's true for all contractual
agreements except for the sale of real property. If you hire me to mow your
lawn, how can I "willfully and completely surrender" one day of lawn mowing
in the next ten days to you at that time?

Really, this is not a problem at all. Complex societies like ours
understand how to deal with intangible property rights. When you book a
hotel room in advance, the right to that hotel room on that day is an
intangible. It could, however, well be a transferrable property right that
you have. That's not a problem.

> You see, property is "transferable" but ideas can only be
> "copied" which is
> why COPYright contains that word and not some variation of "property".
> Property rights, patent rights, and copy rights are distinct.

You are confusing the right with the thing that the right is to. If I have
an idea, and I tell you that idea pursuant to an agreement that you will not
disclose the idea to others, the property I have is the right to pursue you
for damages should you disclose the idea. This is the same concept as if,
say, you sign a non-disclosure agreement. The right is not to the idea
itself, it's to pursue damages from those who violate their actual or
implied agreements not to disclose or use the idea without compensating you.

> That is also why "theft" and what we can generally refer to as "the theft
> words" never applies these topics no matter how often or loudly someone
> yells "you stole that idea from me."

But it is theft, as surely as if I pay you $10 to mow my lawn and you don't
mow my lawn. Violating a contractual agreement not to disclose and not
paying the damages the agreement specifies is a form of theft by fraud.

> Notice that you *can* steal
> a program,
> program source, manuscript, or copy of a book. To do so you must gain
> access to (break) and/or variously enter (hence "breaking and entering") a
> place where such materials reside, and then simultaneously gain possession
> of said materials and deprive the rightful owner of them. (e.g.
> you can go
> take the media, or you could access a computer, copy the
> information onto a
> removable media, and then wipe the originals or take a hammer to the
> computer or something.)
>
> So by definition, the presidents of property rights can not reasonably and
> fully be applied to information and ideas.

You are trying to set back a complex society by arguing that only what you
can touch has legal meaning. But you can't touch the right to use an
apartment from June 1 to July 1. Yet if you agree to pay monthly rent for
the apartment, use the apartment, but don't pay, it's theft.

Seriously, there is no problem at all here. You are needlessly and
senselessly manufacturing artitifical distinctions that make no sense.

> Worse, absolutely none of the DRM arguments even exist within the
> presidents
> of copyright law as a significant subset of the technology and uncertainty
> only comes into play well after the act of copying is completed.

Then forget about copyright law entirely. Think only about contractual
property and the fact that a person who comes up with an idea cannot be
compelled to disclose it and can disclose it under any terms he or she
chooses. Think that when you buy a CD or a program, there's an implied
contract that the CD or program is for your personal use and that violating
that contract is as much theft as living in an apartment without paying
rent.

> Consider DeCSS. At the time that the CCS ("Content Control System", not
> "Copy Control System") comes into play, all parties have already
> agreed that
> the copy 1) should have been created, 2) should have been assigned, and 3)
> is completely within the possession of the reasonably correct
> person. That
> is, the copy has already been made, and you already have the DVD in your
> grubby little paws.
>
> Further, there is nothing inherent in the CCS system that takes a single
> step towards controlling the copy of that DVD. If you have the
> hardware you
> can make a byte-wise copy of the DVD onto another DVD and both copies will
> contain identically CCS(ed) image.
>
> CCS is about whether you can access what that copy contains in a
> meaningful
> way.

Agreed.

> Some people may access that information with the intent to copy it into a
> non-CCSed image, but that is a separate follow-on activity that
> was not even
> considered when the CCS system was created. The CCS system was
> invented to
> solely (and, according to anti-trust law, illegally) tie the one
> product (a
> particular DVD) to another (any player with a licensed DeCCS and matching
> region code).

Agreed.

> The sticky part is that the constitution does NOT create nor endorse any
> sort of "accessright" law. Things like the DMCA endeavor to create such a
> body of law in a back-handed fashion by attempting to convince everybody
> that copyright always included accessright.

Agreed. More sensible would be to look at whether the implied agreement
when you purchased that DVD included a promise to only use it on licensed
DVD players. An argument that is, IMO, nonsense.

Further, there is no reason why the DMCA should have been enforced in cases
where no right recognized under copyright law exists because the DMCA was a
copyright law extension. As far as I know, a DVD seller has no legally
recognized copyright interest in what device I play that DVD on, and hence
CSS is *not* a copright enforcement mechanism.

I totally disagree with the way the DMCA has been interpreted and hope that
there is a massive backlash.

> If it had, then it would be, and would always have been, legal to sell
> someone a book and then say, "you may only read this book in a
> library" and
> have the force of law behind you to back you up in that restriction.

This is certainly not a right recognized under copyright law, so it's not a
right that can be enforced by a copyright enforcement mechanism. However,
this is a moral right that a content author has. Copyright law has taken
this away from content authors in the name of benefitting the public at
large.

Copyright laws gave authors very little that they didn't already have.
Patent laws, on the other hand, give inventors many rights they would not
have otherwise.

DS