Subject: Re: Thought crimes
From: "Jonathan S. Shapiro" <shap@eros-os.org>
Date: Mon, 25 Dec 2000 12:07:31 -0500

[Dave: for IP, if you think it appropriate]
[Others: this note is in response to a discussion about the joint plans of
disk drive manufacturers and content providers to provide copy protection
based on cryptographic means embedded within the drive technology. The
subject line is not of my choosing.]

I think there is a great public confusion about what copyright means, and
that the entire debate about the dangers of cryptographic disk drives is
missing something important.

Copyright has two purposes: (1) to allow an author to gain compensation for
a work, and (2) to ensure that after an appropriate amount of time the work
becomes public domain. As we think about the implications of cryptographic
disk drives, it is important to remember that these technologies only
address *half* of copyright. They allow a distributor to ensure that a
copyrighted work is more difficult to steal. Unfortunately, by their very
success, they ensure that the work will never be released as a public good.
Cryptographic disk drives do not preserve copyright. They enforce something
much much stronger.

The content manufacturers and the disk drive makers are formulating a new
contract with the viewing public. This contract does not protect the
interests and rights of the public as copyright does, because it does not
allow the content to be transferred into the public domain at the expiration
of the copyright period. If the content providers have concluded that
copyright provides inadequate protection, they are certainly free to devise
other means. However, they should not be simultaneously entitled to claim
the benefit of copyright for their works.

It is ironic to note that the manufacturers and the content providers have
conspired to turn the history of copyright back almost five hundred years.
Copyright traces its origin in English law to the charter of the Stationers
Company in 1556. It came into law for the purposes of allowing the crown to
suppress heresy and sedition by concentrating printing presses among a small
number of businesses that could be threatened and coerced by the crown. The
grant allows the Stationers to search out and destroy competing printing
presses (literally to burn them to the ground) outside of other legal
processes. This monopoly was strengthened "for the repressinge of suche
greate enormyties and abuses as of late" by Queen Elizabeth in 1586 in the
Decrees of the Starre Chamber. These repressive laws remained in force until
the expiration of the censorship laws in 1694.

The model for modern copyright law was the Copyright Act of 1709, 8 Ann. c.
19), which was fundamentally an anti-monopoly law. Modern copyright is based
on *preventing* monopolies of exactly the kind that the content
manufacturers are trying to establish.

It is interesting to note that this occurs as software vendors are working
to build similar monopolies in the form of software patent. In the area of
software patents, the conflict between the rights of the public and the
profits of the corporation is particularly painful and clear. There is no
conceivable justification for a 20 year protection period in an industry
whose product lifecycles are less than two years. In this arena, more than
in any other, the introduction of patent robs the public of the ability to
innovate in a timely fashion.

Both debates have neglected a crucial and important point: the rights of the
public.

Patent and copyright as we know them today do not exist to protect the
profits or the interests of corporations. This is commonly forgotten when
people argue the merits. I hear people argue "company X has a *right* to
make a reasonable profit on their inventions." Similarly, we are hearing
that "company Y has a *right* to make a profit on their video, recording, or
what have you. These are reasonable arguments, but they have very little to
do with copyright or patent.

The purpose of copyright and patent is to ensure that the protected
intellectual property becomes a public good within some reasonably short
period of time.

Perhaps, before we agree too readily that either change is reasonable, we
should stop to examine the history of repression and bloodshed that has
surrounded similarly repressive laws in the past.

You'll need a strong stomache. It isn't pretty.


Jonathan S. Shapiro, Ph.D.
Johns Hopkins University