[FYI] (Fwd) FC: CEI's reply to Berman's war on trading: What's wrong

["Axel H Horns" <horns@ipjur.com>]

------- Forwarded message follows -------
Date sent:      	Tue, 02 Jul 2002 21:41:54 -0400
To:             	politech@politechbot.com
From:           	Declan McCullagh <declan@well.com>
Subject:        	FC: CEI's reply to Berman's war on trading: What's wrong with DRM?
Send reply to:  	declan@well.com

CEI is a free-market think tank in Washington, a tad more outspokenly
libertarian than the Cato Institute. It may be best known for its work
on environmental issues, where it has pointed out government reliance
on junk science. Jim Delong, who wrote the below message, is an
occasional contributor to Politech:
http://www.politechbot.com/p-03203.html
http://www.politechbot.com/p-00251.html
http://www.politechbot.com/p-00120.html

CEI is holding an event on July 22 on digital rights management:
http://www.cei.org/gencon/003,03106.cfm

Previous Politech message:
http://www.politechbot.com/p-03702.html

-Declan

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Subject: (SPAM?) CEI's Weekly Commentary:  IP and Technological
Self-Help... Date: Tue, 2 Jul 2002 16:18:19 -0400 From: "Richard
Morrison" <rmorrison@cei.org>

CEI C:\SPIN

This issue:  IP and Technological Self-Help:  Barbed Wire for the
Digital Age


This week's c:\spin, on intellectual property, is by James V. DeLong,
Senior Fellow, Project on Technology and Innovation, CEI, July 2,
2002.


Barbed wire won the West.  The image of the open range is romantic,
but lack of controlled boundaries led to over-grazing, lost stock,
trampled homesteads, bitter conflict, and, in the jargon of a later
era, an inhibited investment climate.

The Internet is sometimes analogized to the Wild West, and last week
Representative Howard Berman (D-Cal.), who has many Hollywood-oriented
constituents, took a step toward making some barbed wire.  He
announced a bill to allow copyright holders to forestall unauthorized
P2P distribution of their works through technological self-help
measures, including interdiction, decoy, redirection, file-blocking,
and spoofing.   Explicit authority is needed, he says, because
technological self-help might violate some existing laws.

Berman's speech added that legislation should be narrow, should not
allow damage to computers or introduction of viruses, and should
provide remedies for any P2Per who is treated unfairly.

As the ranking minority member of the Subcommittee on the Courts and
Intellectual Property of the House Judiciary Committee, Berman has
clout, so his bill, when he introduces it July 11 is rumored will get
serious attention.

And a fine donnybrook it will be.  Initial reporting was mostly
neutral, but the terms sabotage, vigilantism, and cyber warfare did
appear.  They will be used again, because Berman s proposal raises two
major concerns, one fair and one illegitimate.

The fair objection is that the threat of outsiders probing our
computers makes us queasy.  Also, we are not yet convinced that a
system can be designed that will not be error prone.  In response,
proponents of self-help argue that participating in a file swapping
network already opens up a computer to the world at large, and
undercuts claims of privacy.  In any event, if one downloads the
latest Eminem hit only to find that is a decoy containing a lecture on
the evils of theft, can one really claim harm?  Of course, some
devices are unlikely to be approved, such as snitch programs, which
seek out copyrighted material and report back.  As to avoiding error
that is indeed an issue, but it should not be insoluble.

The less respectable objection arises from the reality that large
segments of the Internet community are fundamentally opposed to
protecting intellectual property.  Their fear is not that
technological self-help systems would fail but that they would work.

The premise of this position, that the spirit of the Internet is
somehow opposed to property rights, seems basically wrong.  Protection
of intellectual property, like protection of physical property, has
vibrant moral, economic, and political justifications.  And as CEI has
often noted, the promise of the Internet, which is to make a
cornucopia of content available instantly and cheaply, cannot be
realized without a way to provide creators with the wherewithal to
feed their bodies while their spirits soar.  It is perhaps a paradox,
but if information is to be freely available it cannot be free of
charge.

In this calculation, technological self-help under reasonable legal
standards looks good.  Combined with digital rights management and
micro payments, it would spur the creation of legitimate sites and
reduce the pressure behind the P2P movement.  This would be far better
than leaving copyright holders no way to protect themselves except by
deploying battalions of lawyers seeking increasingly draconian
penalties.  It would also be better than expecting artists to work for
free while they scrounge out a living selling T-shirts and flipping
burgers.

A basic legal case on self-help recovery of property is Richardson v.
Anthony, an 1840 Vermont lawsuit over two heifers.  If Berman's
technological barbed wire can keep those copyright cows from straying,
we will all be better off.



Invasion of the Idea Snatchers:  Defending Technological and Artistic
Innovation

A Forum on Intellectual Property Rights

July 22, 2002

8:00am 2:00pm

Senate Caucus Room (Rm. 325 Russell Senate Office Bldg.)

For more information click here or contact Maura McGonigle at (202)
331-1010 or mailto:mmcgonigle@cei.org


C:\SPIN is produced by the Competitive Enterprise Institute.

CEI works hard to keep you informed about high tech public policy
issues and to present the case for free-market solutions to policy
problems. We do this free of charge, but it is far from free for us.
We rely on the generous support of those who appreciate our work.  




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