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

[James Bottomley <James.Bottomley@HansenPartnership.com>]

> There is much hand wringing and gnashing of teeth over the fact that
> the evil corporations are locking things up with DRM as well as various
> laws like the DMCA.  People talk about their "rights" being violated,
> about how awful this all is, etc, etc, etc.
> 
> What seems to be forgotten is that the people who are locking things up
> are the people who own those things and the people who are complaining
> are the people who got those things, illegally, for free.  There seems
> to be a wide spread feeling that whenever anything desirable comes along
> it is OK to take it if you want it.  Napster is a good example.  I don't
> like the record companies any better than anyone else but they do own
> the material and you either respect the rules or the record companies
> will lock it up and force you to respect the rules.

I think you're overlooking a fundamental principle of law here:
Intellectual "property" is intangible.  In particular, it is *not*
subject to the concept of ownership.  A creator of an idea or expression
has no legal right to the ownership of the same.  What they do have is a
time limited, assignable, government granted right to prevent others
from profiting by that invention or expression.

The rights pertaining to creations of the intellect are fundamentally
weaker than physical property rights, and here's why.  Quoting from the
US Constitution, article I section 8:

"The Congress shall have power... To promote the progress of science and
useful arts, by securing for limited times to authors and inventors the
exclusive right to their respective writings and discoveries"

The purpose of these limited rights is to promote the progress of
science and useful arts.  Thus, the copyright or patent owner is
fundamentally restricted in the limitations they may impose on the user
of their creation.  The origins of the concepts of reverse engineering
and copyright fair use all flow from this.

If you want to make an intellectual contribution to the body of
knowledge you do so under these terms or not at all.

> The open source community, in my opinion, is certainly a contributing
> factor in the emergence of the DMCA and DRM efforts.  This community
> thinks it is perfectly acceptable to copy anything that they find useful.

I disagree.  The open source community, to me at least, appears to be
the closest thing to the ideal set down in the constitution.  I own the
copyright, you may see my source and improve upon it.

I disagree that the open source community "copies" anything it finds
useful.  I might agree that it improves upon something it finds useful,
but that, again, is a lawful purpose.

As far as the DMCA goes, many people think it oversteps the
constitutional boundary by giving to IP holders rights they are
forbidden from possessing, and hence they come to talk about "ownership
of intellectual contributions" rather than "my limited right to profit
by my invention"...only time and the courts will tell.

James