Jacques’ Brain Drain

I have been both reading and writing about computers for a long time. One thing that I’ve found lacking in a basic explanation of key “obvious” concepts which are vital to understanding many legal and moral problems in current society and politics. These are not intended to be political statements. They are neither Republican nor Democratic – Neither libertarian or fascist. These statements are, as clearly as I am able to make them, fundamental properties of the digital world.

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I had an interesting copyright experience this morning.

I follow Violet Blue’s blogs—and when she went to the Forbes Web Disruptor’s conference, she recorded a panel discussion as a video feed. She mentioned in her comments that she wanted to strip it back to only audio, but the software she was using couldn’t handle a file that large. Since I usually listen to lectures and panel discussions while exercising, I stripped it, transcoded it to mp3 and loaded it on my mp3 player.

It was a good panel, and several people made interesting points, but someone else can write about that. What made me pause is that I had the file available, and could have easily made it available to whoever wanted it. Instead – I ended up putting it away in a private directory and sending her a link. Even that was technically unlawful. As things stand, I am being exposed to potential legal liability for trying to help out someone I admire who’s stuck out back of the beyond with marginal software. Somehow, I don’t think that this was what any of the lawmakers involved in copyright intended.

If damaging cooperation among people who respect each other’s work is not the intent of copyright (and I’m fairly certain that it’s not), than how can we fix the problem? That’s a much more interesting question, and answering it means taking a long hard look at how we reward people for creating works of value or beauty. In this context, that means thinking about the social nature of cooperation.

In a way, much of this gets back to some of the things Richard Stallman wrote about software. The key to his writings is a belief that people’s willingness to cooperate and share is one of the human attributes that holds society together. No matter what you have to say about his other beliefs, that basic premise is difficult to disagree with. This leads to some interesting situations—for example, the fact that Bittorrent works for infringing content, socially, says something about people. One of the things that it says is that people will continue to work together, to share things they value with each other, even in the face of personal risk. In effect, my personal benefit ends the moment I have a complete copy of whatever I am downloading – whether that’s a song, a movie, or a program. Any time I continue to stay connected to the network, I increase my personal risk without any direct personal benefit. The system continues to work because of a personal belief that I should “give back” to the community.

Law and society are interconnected systems. Changing one will, over the long term, always have an impact on the other. In situations where changes in society overturn unjust laws, or where good leadership leads to laws that promote a society that is more just – these effects can be extremely good. In other situations, such as where repressive laws have been used in an attempt to stop positive social changes or social resistance has stopped necessary legal reform, things have been less positive. In either case, it’s important to remember this effect when you look at changes in the law, whether those changes are historic or anticipated.

In the case of file sharing networks, the law and society are at odds. The question we have to ask at this point is to what extent we are willing to suppress socially beneficial behavior (sharing) to get a socially desirable benefit (compensation for media companies and, indirectly, artists). This is not a case where any of the absolutes come into play—it’s not about life and death, it’s about money. Money is important, and so are social institutions – but let’s be realistic about what we’re dealing with. Legislation is always a process of deciding to give up some of one thing to get more of something else. It is our responsibility as citizens to ensure that our government makes a good bargain, and to correct it when it fails. I don’t know what the correct balance is, but I know that the current system has failed and it’s time to reassess it starting at the beginning.

Update: She decided not to sue me

Whenever anyone speaks or writes about intellectual property, I suggest you place one hand on your wallet and back away very slowly. The problem with the term intellectual property is twofold: First, it is designed to elicit a comparison to real property and personal property – which is to say actual physical things owned, at least in some cases, by flesh and blood human beings. Second, it is an intellectual shortcut – bunching together a number of dissimilar things (copyrights, trade marks, patents and trade secrets) as if they were actually similar. Both are problematic. For this reason, I’ll restrict myself to copyrights – as they are the true subject of this discussion.

Copyright is a policy tool, not some basic instrument of human right. It was created, originally, to allow the ruling elites of the time some measure of control over the process of publication. In point of fact, it was a tool of censorship. In the United States, that tool was adapted to the (far more socially useful) purpose of providing some incentive for the creators of the time (writers) to do their work. I, for one, do not have a problem with this. It’s clear that this work is difficult, and that authors need some way to receive value in return for their work.

The problem I have with the DMCA and AACS is they stretch the idea of copyright far beyond anything that the founders could have anticipated. Copyright has become effectively perpetual. The scope of derivative works has grown both broader and deeper than at any previous time. In addition, the DMCA has allowed the people behind AACS to effectively eliminate fair use – absent the work of those people developing unlawful tools of circumvention. None of these statements are new. None, at this point, are even controversial.

The DMCA, AACS, CSS, Macrovision, ARCCOS, and every other copy protection system are attempts by content providers to continue their old business models by trying ot make bits not copyable. This, unsurprisingly, will not work. Bruce Schneier wrote, some time ago, that “Digital files cannot be made uncopyable, any more than water can be made not wet.” If your business model requires a mathematical impossibility, wise people start looking for a different business model.

So, why the outrage? The outrage is not because anyone believes that creators should not be rewarded for their work. The outrage is because people feel that they are being taken advantage of. They feel that the RIAA, MPAA and other similar groups have managed to buy themselves extremely favorable legislation – and that, using that legislation, they have proceeded to hurt both their customers and the artists. They see that the cost of producing and distributing information is dropping, but the cost to acquire copies of that information is not.

When people feel angry and powerless, they tend to strike back any way they can. They tend to strike back even if they aren’t really hurting anyone but themselves. In a way, that’s just another paradoxical part of our human heritage – just like our innate human creativity. It’s not particularly juvenile – but rather a result of natural frustration, born of a belief, correct or incorrect, that the system is no longer working.

In the long run, no one wants to destroy the ability of artists to bring us new work. In the long run, the RIAA and MPAA member companies will find a new business model or be relegated to the dustbin of history. In the long run, we will see substantive copyright and patent reform. In the meantime, the important thing to remember is that both groups are basing their actions more on emotions than on facts.

In the case of the RIAA and MPAA, that emotion is fear – the fear of going out of business – of being replaced, of losing power and significance. In the case of the AACS crackers it’s a combination of fear, anger, and frustration. Anger and frustration caused by their belief that they are being ‘taken’. Anger and frustration that the political system does not appear to be working, and fear that the situation will never change.

What you are actually seeing, in the AACS key revolt, is the normal process of political change. It’s messy, ugly, loud and uncouth. It’s also very much a living and flexible system – one that, for the most part, actually works. In a republic, basic reforms only happen when enough people make enough noise that the people we send to Washington are forced to listen. The process is nasty and slow, but it’s the best system we’ve managed to figure out so far.

What this revolt is, fundamentally, is part of the political blowback from the ‘content industry’ pulling a land-grab with so called intellectual property law. They overreached, and now they are on indefensible ground. I don’t know what DMCA will be replaced by – the only thing that I know is that its days are numbered.

After my last post, I sent an appropriately checked off copy of my own form to the folks at cp80.org. I didn’t really expect a response – since my form is a pretty detailed and scathing about the flaws in their approach. Surprisingly, a fellow by the name of Mattew Yarro sent me back a response. Since I have some fairly routine copyright concerns in this overly litigious age, I won’t publish it in its entirety. I will, however quote it somewhat in the spirit of public political discourse. If anyone in CP80 asks politely, I will be more than happy to take down at least some of their response (it depends on which pieces and how large they are).

Since they rewrote my original in their response, the next section is a set of rewritten bullet points and my response to them.

(X) Does Not Require the cooperation from content providers

Who, exactly, would be editing the httpd.conf files?

(X) Does Not Require immediate total cooperation from everybody at once

I’m willing to give you this one – my bad.

(X) Website operators will increase business

In your proposal – even given no secondary effects (unlikely) at least some content providers would receive fewer hits. I see no compelling business case for supporting your proposal. Without browser-level support, I see no effective way of advertising the use of the same content across multiple ports.

(X) Account for religious differences among internet users
(X) Allows nations to develop their own standards or subscribe to a world
standard of harmful to minor.

Exactly how do you expect Saudi Arabia and the Netherlands to agree on a standard?

Now for the really chilling parts

(X) Lack of centrally controlling authority for the internet will be changed
allowing for a centrally controlling autority

This statement is where your group shows tremendous sociopolitical naivite. Please see response below (licensing web servers) for details).

(X) Open relays in foreign countries will be shut down
(X) Wide availability of VPS services will be shut down

Do you even know what a VPS is? It is a virtual private server. I happen to manage one for an aids awareness/action group. If your group seriously supports shutting down wide access to virtual private servers (which can host email, news groups and web access for small organizations which do not wish to pay for larger infrastructure) they you completely fail to understand the value of the very tools you are advocating the restriction of.

(X) The existence of wide reaching anonymity services like TOR will be shut
down

I won’t bother asking why, but simply how? Have you ever read or written a paper on protocol – on – protocol tunneling? Stateful packet inspection and its inherent limits? Diffie-Hellman key agreement with perfect forward secrecy?

(X) The ability of anyone with $20 in their pocket to put up a website
with proxy capability will be shut down

The cure is worse than the disease. Please see above under VPS control.

(X) People with strong philisophical/religious/ethical/moral objections
to filtering information, who would be more than willing to
create/maintain circumvention tools, and be held liable for allowing minors
to access porn or be shut down entirely.

Describe how. Jurisdictional problems. Explain in detail how you would handle the difference between anonymity proxies used by rape/incest survivors to protect their online identities and personal privacy and those used unlawfully by underage persons. Also explain how you would handle multi-hop proxy routing, how you would avoid it, and how you would differentiate between presumably unlawful multi-hop traffic and reasonable single-hop traffic.

If the Internet is supposed to be a “true democracy” then why not allow the
people voice their choice of whether or not they want a more organized and
useful Internet. The Internet does not belong to you, me or anyone else. It
belongs to us all.

The CP80 solution is a method by which people free speech is protected and
the Internet is better organized.

Do not fear evolution. It is how you went from an amoeaba to a free-thinking
being.

The Internet can evolve.

I do allow you your voice. I’m not calling for censorship on a public forum. I’m not suggesting broad-based changes in the way public infrastructure is set-up, provisioned and managed. I think you’re wrong, both technically and philosophically, but that is not equivalent to an attempt to take away your voice.

If a group of people want to go off somewhere and, using PICS or some other technical measure, attempt to build a parallel infrastructure – I’m fine with that. If you think you can get business to agree with you based on some compelling business case, you’re welcome to try. When you start discussing broad-based changes to the way existing systems are set up and managed, without extremely strong evidence of a deep understanding of how those systems work, you will be laughed at. You will be ridiculed and reviled. It’s not personal, but it’s like the kids telling the grown-ups how to run things.

I did not present personal attacks, but rather a reasonably well reasoned indictment of your approach. My statements were based on seeing plans discussed, brought forth, implemented tweaked, rewritten and scrapped in the real world. I have built web servers, mail servers, chat systems, proxies, reverse proxies, routers and other infrastructure. I have designed protocols and had them fail for lack of deep enough understanding. I’m currently, with two other authors, in the process of writing an RFC draft for another protocol.

Your approach fails in several areas on technical grounds. Regardless of what I feel about your approach on philosophical grounds, a failure to address technical problems is a “deal killer” – it makes further discussion pointless. If you were backing PICS, I could at least respect you on a technical level. Having said that, there are other issues in my original statement which you failed to address.

(X) In order to be even minimally effective, it would require licensing web servers
(X) The objections raised in RFC 3675 (”.sex Considered Harmful”)

To this I add one more question. What are you trying to accomplish that cannot be better achieved using PICS, some combination of RBL servers, and ingress/egress filtering?

Just for Grins (honorable mention)

(X) Extreme stupidity on the part of people who do business with content
providers becoming responsibile for their decisions.

I respect your belief in the fundamental perfectibility of mankind. It reflects well on both yourself and your organization. Unfortunately, you are bent on achieving a level of perfection much greater than that presently evidenced on a time frame which appears quite short for such a large change in human nature.

(X) Lack of consensus as to the harmfulness of content in general and/or
this content in particular among pornographers has nothing to do with this
decsion.

What? Your edit on this one fell flat. It’s incoherent – what exactly were you trying to say?

And my personal favorite:

(X) Technically illiterate politicians become technically literate

I have been working at educating politicians in the technical challenges of the Internet since the early 1990s. No significant success has been achieved.

It never fails. Every few years some interested group of concerned citizens decides that the real anarchic and living chaos of the Internet needs to be tamed to protect the children. They always start with one of two approaches:

1. Separate the Internet into two categories—kid safe and not—and label them so that “parents can choose”


2. Ban all the material on the Internet that’s not child-safe.

They come up so regularly and so offensively that I’ve become extremely sick of hearing them. First the CDA (type II), then CDA II (type II) and COPA (again II) as well as the .sex and .xxx proposals (Type I). My response to these has become so routine that it’s time to take steps to simplify the process of answering and save myself some time. Since I’ve been a systems administrator for quite some time, I decided that some automation was in order. Since I also believe in the Open Source approach, I decided to make my solution public under the CC:PD license (public domain). Here’s my universal response form:

porn_solutions.txt

Update:

Got some link-love from Violet Blue