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[FYI] (Fwd) Re: Thought crimes

------- Forwarded message follows -------
From:           	"Jonathan S. Shapiro" <shap@eros-os.org>
To:             	<farber@cis.upenn.edu>, <ip-sub-1@majordomo.pobox.com>
Copies to:      	<fsb@crynwr.com>, "Mark S. Miller" <markm@caplet.com>,
       	"Marc Stiegler" <marcs@skyhunter.com>
Subject:        	Re: Thought crimes
Date sent:      	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

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

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