[cc-community] Last chance to comment on DRM!

Greg London email at greglondon.com
Wed Apr 23 21:46:58 EDT 2008


This is what I posted:


Hello. My name is Greg London. I've written a book on intellectual
property called
"[URL=http://www.greglondon.com/bountyhunters/index.htm]Bounty
Hunters[/URL]: Metaphors for Fair IP law". I'm not a representative of
Creative Commons, but I've been active on the Creative Commons email lists
for a number of years now, helping people understand CC licenses,
answering their questions, and so on. I've been working as an electrical
engineer for more than a decade. And I've been dabbling in writing fiction
recently.

While I'm not a lawyer, I believe I'm somewhat familiar with the concepts
of intellectual property to make some semblance of an informed opinion on
your DReaM project.

In short, I think you're missing a fundamental point about Fair Use.

Copyright gives a limited list of exclusive rights to the author of a
work. No one may exercise these rights but the author. The author is given
these rights as an incentive to create new works, with the intent usually
being that the author would leverage these rights into some form of
monetary reward.

In my book, copyright is to authors, the way that reward posters are to
bounty hunters. Incentive programs to encourage individuals to create new
works.

If copyright can be viewed as a reward system to encourage bounty hunters,
then Fair Use could be compared to a list of inalienable rights promised
to the public, rights which the bounty hunters cannot restrict in their
operations.

Authors can use their exclusive rights to get payment for creating works.

Fair Use is a list of rights that is promised to the public that authors
cannot take away.

Your DReaM project appears to view Fair Use as something that authors
enforce. That would be like designing the law enforcement system in such a
way the police are primarily responsible for ensuring that a suspect's
Miranda rights are respected by the police, rather than the courts.

Fair Use is a restriction on Author power. Fair Use is a list of public
rights that have been deemed too costly to make exclusive rights of the
author. Fair Use makes public the very rights that would allow an author
to over-monopolize their works, to the detriment of the Public Good.

This is the key measure of what is and is not under the umbrella of Fair
Use: whether or not giving the rights to the author would harm the public
good.

DRM, no matter how it is designed, first and foremost grants the author
technical means to override legally protected Fair Use. DRM, no matter how
it is designed, requires author permission to override, even when those
rights were guaranteed to the Public via Fair Use. For DRM to achieve the
actual purpose of Fair Use, it would require that the Author actively
surrender to the Public the very rights that would allow the Author to
over-monopolize his position at the expense of the Public Good.

One might as well trust the Fox to guard the Hen House.

The separation between the rights granted Authors via copyright and the
rights promised to the public under Fair Use could be viewed as a
separation of powers. The author acts as the Executive branch. Copyright
law is only enforced if the author pursues legal action. Fair Use is a
function of the Judicial and Legislative branches. Fair Use is a safeguard
against the overzealous author enforcing extra restrictions on a work that
copyright does not grant him, whether he try to enforce those restrictions
through technological means, or overly restrictive End User License
Agreements, or attempts to prevent reverse engineering.

Fair Use prevents power from being centralized into the hands of a few.
Fair Use prevents an Author from becoming judge, jury, and executioner of
copyright law.

DRM is exactly an attempt to centralized all rights to a work, even the
rights of Fair Use, into the hands of the author. DRM is, at best, the
author dribbling out the rights he is willing to part with, and at worst,
the author attempting to kill Fair Use. Because DRM puts control of all
righst into the hands of the author.

There is no means by which the diametrically opposed concepts of DRM and
Fair Use can coexist. One calls for a separation of powers. the other
calls for a centralization of powers. There is no way to negotiate a
settlement between mutually exclusive goals.

I would ask that you reconsider your DReaM project. It is a DRM project.
It cannot be a Fair Use project so long as it is a DRM project. It cannot
defend the Public Good from overmonopolization of rights by the author by
handing the author technical measures to monopolize all rights. It cannot
create a separation of powers that is inherent in Fair Use by centralizing
all powers in the hands of the author.

If you wish to continue pursuit of an Open Source DRM project, that's your
perogative. But you ought to be clear with the public that it is a DRM
project only, not a Fair Use project.


> Not really, but close to last chance to comment within the official
> two month comment period on Sun's proposed support for CC licenses and
> fair use in their DReaM.
>
> Read this long intro first:
> http://creativecommons.org/weblog/entry/8080
>
> The relevant documents are at:
> https://www.openmediacommons.org/forums/forumdisplay.php?s=&f=12&page=1&pp=20&sort=lastpost&order=desc&daysprune=-1
>
> I had hoped a number of people would come forward with comments on
> this, whether to do as Rob Myers suggested --
> http://www.robmyers.org/weblog/2008/02/28/help-cc-fisk-suns-dream/ --
> or to proclaim a major breakthrough -- but nobody has, at least
> publicly.
>
> Is DRM *so* dead that nobody even cares? :)
>
> Mike
> _______________________________________________
> cc-community mailing list
> cc-community at lists.ibiblio.org
> http://lists.ibiblio.org/mailman/listinfo/cc-community
>


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