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

Robert White
2003-05-02T00:42:32Z

I am not sure why I am bothering since you clearly don't know anything at
all about what does or does not constitute property. (and therefore all
your "property law covers this" based logic is impossibly flawed.)

Nonsense right back to you. Your "right to compel me to mow your lawn
tomorrow" isn't a property right in any sense. It is covered under "tort"
law (whatever the heck that is). In plain speak is an AGREEMENT not a
POSSESSION.

It is not property because, among other things, it isn't transferable. You
can not COMPEL me to mow your neighbors lawn instead. You could pursue an
alteration of that agreement involving your neighbors lawn in stead, but I
am not COMPELLED to AGREE to such a change. Moreover, you can't re-sell my
mowing of your lawn to your neighbor without making me party to the revision
of the agreement. (The reason people confuse this often enough is because
into financial lending agreements one often agrees at the time of borrowing
to allow the lender to sell your promise of payment to a third party.)

However, as we all (hopefully) learned in primary school, you can't borrow a
dollar from me, loan a dollar to "Alex" and then, when I come for my dollar,
tell me to go get it from "Alex" because he owes it to you. Agreements can
not be sold, and are not property. Agreements that contain a right-to-sell
are agreements with that provision, but they are still not property. For
instance, you don't and *cant* "own stock" even though people use that
expression all the time. you *HOLD* stock in a company. Hence
"stock-holders meeting" and "majority share-holder" as so forth.

"Contractual property" is a non sequitur. As is "intellectual property".
Ask a lawyer.

The fact that you seem to equate "I will mow your lawn tomorrow in
consideration of the $10 you gave me today" to be the same as "one generic
day of lawn mowing" demonstrates that you, personally, should *NEVER* make
any kind of agreement with anybody for any purpose. 8-) "one day of lawn
mowing" is completely dissimilar to "mow (a specific) lawn on (a specific
date)". Persons who try to turn the latter into the former are guilty of
fraud and will tend to be out $10 in a court of law.

And no, I am not "trying to set back a complex society by arguing that only
what you can touch has legal meaning." I am trying to make you understand
that agreements, "real property" (which is land), "property" (which is any
tangible thing other than land), and copyright (among other concepts) are
completely dissimilar and are covered by completely different kinds and
scopes of law. The fact that they are "not the same thing" completely
negates your "the law of one is the law for all" claim that "property law"
somehow carries into the other areas.

There is not now, nor has their ever been, such a thing as "intangible
property". There is (real and otherwise) property, there are contracts
(oral agreements, written agreements, common stock, preferred stock, trusts,
etc are all contracts), and there are rights (including copyrights and
patents) and they are each governed by completely different sets of laws.
If you go to court to claim that property law says something about
non-property (like a contract you are a party too) you will get laughed at,
and then you will lose.

For instance, the authors right to not invent and not share his invention,
is, wait for it... a RIGHT... and doesn't make the idea any kind of
property. You even used the words your self "... I have the right to the
contents of my own head ..." and the follow-in fact that you can get
together with someone and agree to a contract where you will disclose the
idea for $10 and a non-disclosure agreement, is contract law. (Notice that
there is still no "property" anywhere in there, its all rights and
agreements. "Property law" doesn't apply because there is NO SUCH THING as
INTELLECTUAL PROPERTY)

Contrary to your statements, Patent law did less for the patent holder than
copyright did for authors.

In many cases, an invention is self describing. You build a windmill and
someone can come along and disassemble the thing and know how to build a
windmill. In most cases, however, inventors can keep secret the nature and
structure of their invention and still profit from that invention. Patent
law was really about convincing inventors to record their inventions in a
public archive instead of taking their invention with them into death.
Invention is different than authorship because often times the invention
doesn't automatically reveal itself. Consider Damascus (sp?) steel or the
formula for the varnish Stradivarius (sp?) used on the instruments he
created. These are inventions that have been lost despite the fact that we
still have some of the swords and violins. So many, perhaps even most,
inventors enjoyed both the protection of keeping their secrets secret and
still profiting from them.

Copyright, however, gave authors something they didn't have at all. The
right to control who copied their work once it left their hands. Books only
have value if they are read, plays have their value in the performance. Art
is public. Prior to the invention of copyright, if you said your idea
aloud, wrote it down, painted it, sung it, or whatever, you had ceded it to
the public. Period. End of story.

So you have it exactly backwards. Copyright gave whole classes of
innovators something they never had before even slightly, while Patents gave
far less new protection to inventors.

Saving the best for last, the fact that "you come to own property via a
contract" doesn't bring the fact of property ownership under the purview of
contract law. The contract *ENDS* and ceases to exist, with respect to the
property, once the agreement is discharged and the ownership is transferred.
The contract law governing the sale of property has nothing to do with the
body of property law.

Example: you are selling Alex some land. I am injured on the land before
you complete the sale. The existence of the contract and the intent to sell
do not allow me to pursue Alex in court for my injury. If the injury happed
one instant after the transfer of ownership, you are safe and Alex is on the
hook *UNLESS* you agreed to indemnify him against such things for some
period of time after the transfer of ownership. In that last case I *STILL*
sue him as the owner, but he gets to exercise the agreement and bring you
into it. There will even be a meta-hearing to determine if the agreement
validly redirects my suit and whether the suit goes under property or
contract law at that point. (and so on...) This special example case of
indemnity exists because the contract didn't end with the transfer of
property (for the specific purpose of that indemnity).

[ASIDE: you are also wrong about contracts being the basis of real property
ownership. Real property has its basis in the fact that someone at some
time in the past said "this place is mine!" (which you can still do in well
defined circumstances, see "squatters rights" etc.) The *transfer* of
ownership is *usually* accomplished by agreement, but that isn't the basis
of the law in the matter. I can come to own your house by all sorts of
means you did not agree to, not the least of which would be moving into your
house and living there for N years and having you not complain about it.]

[ANOTHER ASIDE: you ever hear the expression "possession is nine-tenths of
the law"? The law in that usage is only property law. Which is why NDAs
work, because possession is *NOT* nine-tenths of the way out of a contract
nor is it nine-tenths of the way into a copyright.]

You can agree to almost anything, but agreements don't create property, and
property exists in the absence of agreement.

All that considered, the rest of your argument is specious. Period.

Rob.

-----Original Message-----
From: David Schwartz [mailto:davids@webmaster.com]
Sent: Thursday, May 01, 2003 4:09 PM
To: Robert White; Jamie Lokier
Cc: linux-kernel@vger.kernel.org
Subject: RE: Why DRM exists [was Re: Flame Linus to a crisp!]

> 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