Dr. Jerry Pournelle

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Computing At Chaos Manor:
December 19, 2006

The User's Column, December, 2006
Column 317, part 3
Jerry Pournelle jerryp@jerrypournelle.com
Copyright 2006 Jerry E. Pournelle, Ph.D.

Continued from last week.

Bill Gates recently held a blogger party, and everyone showed up carrying Macs. You can find an account at this link. The important part came when

Gates said that no one is satisfied with the current state of DRM, which "causes too much pain for legitimate buyers" while trying to distinguish between legal and illegal uses. He says no one has done it right, yet. There are "huge problems" with DRM, he says, and "we need more flexible models, such as the ability to "buy an artist out for life" (not sure what he means). He also criticized DRM schemes that try to install intelligence in each copy so that it is device specific.

His short term advice: "People should just buy a CD and rip it. You are legal then."

It turns out that may not be true. Dan Spisak has found:

Unless you live in Australia:

Engadget link

Or Singapore, thanks to our "Free Trade" agreement with them:

Today Online link

Or for that matter in the US, the EFF isn't sure it is a clear-cut matter:

EFF link

All of which leaves us in a state of confusion. The Digital Millennium Copyright Act, written partly by Congressional staffers who, after it was passed, went to work for RIAA and other major outfits with an interest in the law, has not been read in its entirety by any Member of Congress so far as I can tell. The lawyers read it and exploit it; but we the people get the very short end of that stick. The war on digital rights is about as confused as the war on drugs (see this link) where you can get twenty-five years for taking pain killers, while real drug dealers plea-bargain for a lot less. It's all part of our new system of government, in which laws are selectively enforced because they have to be: if all the laws were enforced we'd every one of us be in jail.

In other words, the Digital Rights Management situation is a mess, and it's going to take the equivalent of a new DMCA to fix it. The question is, what is it we want to accomplish? What should copyright and patent law protect, and why?

One would think that a simple enough task, but it is not. There is a broad spectrum of opinion ranging from the simple "information wants to be free" so there are no intellectual property rights and there is no need to enforce them, to those who want to criminalize downloading one song without authorization and levy enormous fines on parents whose children copy movies.

Unfortunately, the two extreme views have the most influence, and no one pays much attention to the rest of us. The "information wants to be free" - IWTBF - crowd gets the most attention, and a good bit of the public think that's what the high tech community wants. Those who want maximum restriction and criminalization have the lobbyists and the best organization. And so far, it's clear who's winning: the RIAA and MPAA have got their laws and win most of their court cases. The rest of us are playing catch up.

One reason we are playing catch up is because the Congress and much of the public have been persuaded that the IWTBF crowd speaks for us, and what they're demanding is outrageous, with the result that many authors of both books and songs have turned away in disgust. For generations, artists and authors have considered publishers the class enemy; the IWTBF crowd have achieved the remarkable feat of pushing the creators into the arms of the publishers. Better the publishers, who we think don't pay us enough but at least recognize they can't exist without us, than the people who want to make it both legal and ethical to rip off everything we do and use it in any way they like, and have legal protection for doing it.

For instance: I recent came across a web site that offered nearly every book Niven and I ever wrote, along with Asimov and Heinlein and many others, free, in .doc format. His defense was that he was making these works available to those who couldn't afford them. And of course he was taking advertisements. The only content that would attract people to his site was the copyrighted works of others.

Book authors are - for now - partly protected from piracy by the lack of availability of really convenient ways to read books electronically. No one wants to relax with a good book to be read on a desktop monitor. (Some with poor eyesight may have no other choice, but that's not quite the same thing.) However, reading a book on a TabletPC is almost as convenient as reading it in hardbound (and on a dark airplane is a lot better); and while the current crop of electronic book readers is not quite good enough, it's getting close. See the Sony Reader.

It's different for the music and movie artists, authors, and creators. The technology is already here, and piracy is widespread, as we all know. Most people believe movies are made by people who love film and film art. They're wrong. The book industry, until recently, was almost entirely controlled by people who really liked books, were book people, who respected authors, and who published only in part to make money. Book publishing has always had a low return on investment, and has always depended on editorial people who love their work and are willing to start at ridiculously low pay and live five to an apartment on a fourth-floor walkup despite having a cum laude degree from an expensive college just so they can be part of the publishing world.

Hollywood isn't like that. Hollywood is basically an investment community, and the movie industry - out here we just call it "the Industry" - is no more than that. People invest money in movies to make money. Now sure, directors and artists and many -- most - of those who work in the Industry do it in part for love of the game, but the people who put up the money do it because there are fabulous profits to be made if you hit it big.

And without some kind of DRM, that industry will go away.

It's different yet again for recording artists. It used to be that the equipment needed to make a commercial quality recording was so expensive that only the big recording studios could afford to do it; which is why they always got the lion's share of the returns, and why recording artists almost universally hate their publishers with a passion that most book authors find hard to understand. Publishers may be the class enemy for authors, but we do understand that we need each other. Recording artists and their studio publishers don't have that understanding. They hate each other.

So: where do we go from here? Without some kind of copyright protection no one will finance big movies, and even small movies are pretty expensive to make. Without some way to insure some return on time invested, authors won't write long and crafted books. Writing good books is hard work. It's less work to turn out pot boilers. It's less work to write copy for soup companies.

We'll return to this subject next year. Meanwhile, I ask all of you to think about this: what should we do? If the serious computer user community can come to a consensus, we can have considerable power and influence. We have a spokesman, who has a powerful lobby. Bill Gates has said that DRM is a mess, and it isn't being done right; and the Microsoft lobby has the clout to counter much of the influence of the RIAA and MPAA.

What would you like to see that clout used to get? What is a fair solution to the problem of Digital Rights? And yes, I understand that we may not get Bill Gates to agree with our consensus; but it's certain that if we don't have a position, no one will agree with us.

Things to Consider

One obvious change in Copyright Law ought to be the length of time a work is protected. The Berne Convention (initiated by Victor Hugo) stipulates that copyright protection shall extend for the life of the author plus fifty years. Since the United States is a signatory, it would be extremely difficult to shorten that time, even if there were no opposition by authors and authors' associations.

The Convention is extremely author-friendly, and few authors have any objections to its protections. There is considerable controversy over the nature of those protections. The DMCA makes many violations of copyright not merely liable for civil damages, but a criminal act subject to both fines and imprisonment. Many, including many authors, question both the wisdom and justice of those provisions. It is one thing to criminalize actual theft, such as when a publisher knowingly and deliberately prints copies of works to which he is not entitled, and sells them. I have encountered pirated copies of my own works more than once when shopping at Costco. In all those cases the books were printed overseas and should not have been allowed in the country in the first place. Out and out piracy by US and Canadian firms is rare, possibly because of the criminal provisions in the law: paying damages may be a cost of doing business, but the threat of jail time is a more serious deterrent.

It is quite another matter to threaten criminal action against a casual user who downloads a copy of a movie or book, even if he gives it to someone else. Few artists, authors, or performers would want to see someone jailed for this, or see the parents of an adolescent threatened with ruin over that kind of piracy. Such acts ought to be discouraged, and I am all for making it more difficult to do that so long as there is not serious inconvenience of legitimate buyers, but the present system clearly isn't working well.

The Convention stipulates life plus fifty years, but allows signatory nations to extend that. The United States has chosen to make the period longer. Certainly that length needs discussion; it seems unreasonably long even to me.

Orphan Works

Under the older 28 years renewable in the 28th year rule, it was relatively easy to tell when a work was in public domain: it had either been renewed or it had not, and that was easily determined. The notion was that if it wasn't worth renewing, it probably wasn't worth much.

The Berne Convention, influenced by Victor Hugo's elegant presentation, demands that copyright be automatic and there be no renewals or registration required. (The United States stipulates that unregistered works are protected and you can require unauthorized publishers to cease and desist, but you can't collect damages unless copyright is registered.)

The problem here is that after an author dies, the ownership of the copyright is often not easily determined; and the copyright act can be a death sentence to minor works. An editor isn't going to put out a lot of effort to track down the copyright owner and clear the rights to reprint a work unless there's something unusual about that work. Is there any remedy to that?

This is true for artists, composers, authors, and performers. Many great performances from the past are lost to copyright entanglements: no one is willing to spend the time and effort to clear the rights. The public loses, and so does the artist's memory and reputation. And sometimes the work itself is lost because there is no incentive to re-master it.

Intellectual Property

The real controversy here is over intellectual property. There is a wide spectrum of views on this, from the extreme libertarian position that, since nothing is lost if you copy my work (as opposed to your stealing the manuscript), I have no actual property in the copy. (I understand that there are libertarians who regard intellectual property as property, and others who do not hold this view. This is not an attempt to define who is authorized to speak for Libertarians.)

This is one statement of the position that Information wants to be free. A modification of this position separates "commercial use" piracy from "personal use" copying, and holds that if you make a copy for your own consumption it's all right, and it's probably all right if you give away a few copies to your friends, and perhaps it's all right if you simply make it available free to anyone who wants it, but you aren't allowed to sell it. Suppose, though, you give away copies of other people's works, but sell advertising on your web site "to help with expenses"? And, of course, your "personal use" deprives the artist of the revenue he would receive if you bought a copy, and your "sharing" does the same and more.

In other words, is intellectual property actually property at all?

These are matters for discussion and debate. I already have dissenting comments from some of my advisors; those will be posted in the mailbag. I expect this discussion to continue for weeks or months; if we can come to any conclusions, I will send those to a relevant Congressman friend who has expressed an interest in the matter. And of course to Mr. Gates, although I can't guarantee he will read it.

The Christmas Shopping List

My apologies: my brain has been in Hell for the last month, which is to say I have been working with Larry Niven on the sequel to Inferno. I've also been turning out text for Mamelukes, the next book in the Janissaries series. As a result I've not had time to collect or even consider goodies for Christmas, and if I were to make a list it would have to be taken from lists I've seen by everyone else. Why bother?

So I beg your indulgence on this one.

There will be no column or mailbag next week due to the Christmas Holidays.