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Computer underground Digest Wed Nov 19, 1997 Volume 9 : Issue 85
ISSN 1004-042X
Editor: Jim Thomas (cudigest@sun.soci.niu.edu)
News Editor: Gordon Meyer (gmeyer@sun.soci.niu.edu)
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Field Agent Extraordinaire: David Smith
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #9.85 (Wed, Nov 19, 1997)
File 1--BLOCKING SOFTWARE BY PUB LIBRARIES IS UNCONSTITUTIONAL
File 2--Re: Cu Digest, #9.83, Wed 12 Nov 97
File 3--Reply to Bell's forthcoming post
File 4--Cu Digest Header Info (unchanged since 7 May, 1997)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
---------------------------------------------------------------------
Date: Sun, 16 Nov 1997 13:22:32 -0600
From: Jonathan D. Wallace <jw@bway.net>
Subject: File 1--BLOCKING SOFTWARE BY PUB LIBRARIES IS UNCONSTITUTIONAL
PURCHASE OF BLOCKING SOFTWARE BY PUBLIC LIBRARIES IS UNCONSTITUTIONAL
A Briefing Paper by Jonathan D. Wallace, Esq.
jw@bway.net
(revised November 9, 1997)
The following is intended for use by free speech advocates to oppose
the installation of blocking software such as Cyberpatrol, Surfwatch,
NetNanny or Cybersitter in public libraries. Permitted uses include
basing your own correspondence or documents upon the research
presented here, excerpting this document, or presenting it in its
entirety to the people you are trying to influence. Please
redistribute freely.
Jonathan D. Wallace, Esq., is a New York City-based attorney, author
and free speech advocate. He is the co-author, with Mark Mangan, of
Sex, Laws and Cyberspace (Henry Holt 1996), and with Michael Green
of two forthcoming law review articles, "Curing Metaphor Deficiency:
The Internet, The Printing Press and Freedom of Speech" (Seattle
University Law Review) and "Anonymity, Democracy and Cyberspace"
(Hofstra Journal of Law and Legislation).
Public libraries in Austin, Boston and elsewhere have decided to
install blocking software on computers connected to the Internet.
Other libraries around the United States are considering purchasing
such software. The purpose of this paper is to summarize, for readers
who are not themselves attorneys, the legal precedents that establish
that the installation of blocking software by public libraries is
unconstitutional under the First Amendment.
Blocking software is defined as software products published by
commercial software publishers which do any of the following: block
access to Internet sites listed in an internal database of the
product; block access to Internet sites listed in a database
maintained external to the product itself; block access to Internet
sites which carry certain ratings assigned to those sites by a third
party, or which are unrated under such a system; scan the contents of
Internet sites which a user seeks to view and block access based on
the occurrence of certain words or phrases on those sites. Blocking
software products currently on the market include Safesurf, Surfwatch,
NetNanny, CyberPatrol and Cybersitter.
It has been widely reported recently that these products go far beyond
blocking "pornography". In fact, most block sites containing speech
which is clearly First Amendment protected, such as the National
Organization for Women site (http://www.now.org), blocked by
Cybersitter, and the Electronic Frontier Foundation archive
(http://www.eff.org), blocked by CyberPatrol. More information on
political and lifestyle sites blocked by these products is available
on the Peacefire Web pages , and in The Ethical Spectacle, maintained
by the author of this paper. (. (Please note that both of these sites
were themselves blocked by Cybersitter for their criticism of the
product.)
Most advocates of the use of blocking software by libraries have
forgotten that the public library is a branch of government, and
therefore subject to First Amendment rules which prohibit
content-based censorship of speech. These rules apply to the
acquisition or the removal of Internet content by a library. Secondly,
government rules classifying speech by the acceptability of content
(in libraries or elsewhere) are inherently suspect, may not be vague
or overbroad, and must conform to existing legal parameters laid out
by the Supreme Court. Third, a library may not delegate to a private
organization, such as the publisher of blocking software, the
discretion to determine what library users may see. Fourth, forcing
patrons to ask a librarian to turn off blocking software has a
chilling effect under the First Amendment. These points are each
discussed at greater length, with citations to significant cases,
below.
I. The Pico Case Bans The Use of Blocking Software in Libraries
In the leading case of Island Trees Board of Education v. Pico, 457
U.S. 853 (1982), the local board ordered removal from the school
library of books including Bernard Malamud's The Fixer and Richard
Wright's Black Boy. The Supreme Court held:
Our Constitution does not permit the official suppression of
ideas.... In brief, we hold that local school boards may not remove
books from school library shelves simply because they dislike the
ideas contained in those books and seek by their removal to
"prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion.".... Such purposes stand
inescapably condemned by our precedents.
Although Pico dealt expressly with the removal of books, it governs
the use of blocking software for two reasons. First, blocking a Web
site is analogous to removing a book. Second, Pico strongly implies
that even the acquisition of books must be carried out according to
certain standards imposed by the First Amendment. Therefore, whether
you compare blocking Internet sites to removing books from the library
or simply failing to acquire them, Pico suggests that the blocking of
First Amendment-protected Internet content is illegal.
i. The installation of blocking software by libraries constitutes an
unconstitutional removal of materials from the library.
The blocking of a web site is analogous to the removal of a book from
a shelf.
A library installing computers with full Internet access has, in
effect, acquired the entire contents of the Internet. Blocking
software which screens out sites based on their inclusion in a
database of impermissible sites, or blocks them based on the
occurrence of banned words or phrases, is effectively removing these
resources from the library. Just as the board of education did in
Pico, someone has gone through a thought process which resulted in the
removal of materials based on their disfavored content.
A court scrutinizing the constitutionality of blocking software in
public libraries will certainly look closely at the process a software
publisher follows in deciding to add a site to the blocked list. A
site may be scanned for keywords by a software "spider" and then
reviewed by a human being, or a human being may look at the site as a
matter of first instance after hearing about it from another source or
finding it in a search engine. In either case, the person reviewing
the page is likely to be a low-compensated or part-time worker who
spends only a few moments looking at a particular page before adding
it to the blocked list. This accounts for the blocking by every
available product of numerous pages pertaining to freedom of speech,
AIDs, safe sex and other matters, as the presence of a keyword like
"sex", "condoms", "gay" or "pornography" on a Web page is usually
sufficient to cause it to be added to the blocked list.
The thought process followed by the worker deciding to add a site to
the blocked list bears no resemblance to that of a trained
professional, the librarian, deciding to acquire a book for the
library. It is, however, identical to the thought process of a harried
censor rapidly scanning a printed work for suspect words or phrases,
without taking the time to understand the work or place the suspect
terms in context.
Therefore, the installation of blocking software in a public library
directly violates Pico's ban on the content-based removal of works
from the library.
ii. Pico also implies that the First Amendment governs the acquisition
of content by the library.
The pro-blocking forces rely on the Court's statement in Pico that:
As noted earlier, nothing in our decision today affects in any way
the discretion of a local school board to choose books to add to the
libraries of their schools. Because we are concerned in this case
with the suppression of ideas, our holding today affects only the
discretion to remove books.
Advocates of blocking argue that a library has no legal obligation to
buy any particular book or to allow the viewing of any particular Web
site. However, this reliance on Pico is misplaced. In limiting its
decision to the facts before it, the Court was clearly not holding
that a librarian could legally follow any imaginable agenda in the
selection of books for acquisition.
For example, it would not be constitutional for a public librarian to
refuse to purchase anything by Malamud or Wright, based on the
concerns of the Pico schoolboard. Similarly, a public librarian could
not decide only to purchase books approved by the Christian Coalition.
Pico's subtext is that only the librarian, and not anyone else, should
decide what the library is to offer, and that the librarian is
expected to do so pursuant to the standards of his or her profession.
When a library installs blocking software, it chooses to exclude First
Amendment-protected, socially valuable sites based on the obscure
criteria or political agenda of the blocking software publisher. This
point is further discussed in the next two sections.
II. The Criteria Used By Blocking Product Publishers Are Vague and
Overbroad and May Not Legally Be Adopted by Public Libraries
While certain speech, such as obscenity, is considered outside the
protection of the First Amendment and can be barred at will, the
Constitution provides significant barriers to rules pertaining to
protected speech. When a library installs blocking software, it is
enforcing a set of rules determining which protected speech its users
can access . These rules are inherently suspect under First Amendment
principles and are likely to be held unconstitutional. In general,
government rules regulating protected speech must be narrowly tailored
to serve a compelling government interest. Rules that are overbroad or
vague, and which attack too much speech, will almost inevitably fail.
There is a certain irony in the failure of many commentators to draw
the appropriate parallel between last June's ACLU v. Reno, 929 F.
Supp. 824 (E.D. Pa. 1996) , aff'd __ U.S. ____ (1997), decision
holding the Communications Decency Act (CDA) unconstitutional, and
today's library controversy. The CDA banned speech on the Internet
"depicting or describing" sexual "acts or organs", even if that speech
otherwise had significant social value. A panel of three federal
judges held the CDA to be overbroad, in that it would ban much
valuable speech online. The examples given by the court included
newsworthy reporting of female genital circumcision in Africa, and the
dissemination of safe sex information. Advocates of the use of
blocking software by libraries have failed to explain why, if the
government could not directly ban the National Organization for Women
pages via the CDA, it can do so indirectly through the use of blocking
software.
While the court referenced blocking software as a less restrictive
alternative to government censorship, it did not mean use of blocking
software by the government. It meant that a concerned parent could
install a blocking product on a home computer (a clearly
constitutional use, as there is no government action involved)
obviating the need for laws banning content on the Internet. The court
did not consider the use of blocking software by libraries. It did,
however, decline to endorse the government's suggestion that an "-L18"
rating scheme be mandated for all speech on the Net. A public
library's installation of blocking software in effect circumvents the
ACLU v. Reno ruling, by creating a customized Communications Decency
Act applicable to the library's users.
It is a constant of First Amendment cases that speech rules, in order
to be constitutionally acceptable, must be clear enough to communicate
to citizens which speech is legal and which is not. There is no
consistent set of standards followed by blocking products, and almost
all of the publishers refuse to disclose their database of blocked
sites. Several have published the rules they follow in determining
which sites to block; here is one example:
"CYBERsitter Site Blocking Policies
The CYBERsitter filter may block web sites and/or news groups that
contain information that meets any of the following criteria not
deemed suitable for pre-teen aged children by a general consensus of
reports and comments received from our registered user
- Adult and Mature subject matter of a sexual nature.
- Pornography or adult oriented graphics.
- Drugs or alcohol.
- Illegal activities.
- Gross depictions or mayhem.
- Violence or anarchy.
- Hate groups.
- Racist groups.
- Anti-semitic groups.
- Advocating of intolerance.
- Computer hacking.
- Advocating violation of copyright laws.
- Any site that publishes information interfering with the legal
rights and obligations of a parent or our customers.
- Any site maintaining links to other sites containing any of the
above content.
- Any domain hosting more than one site containing any of the above
content.
The above criteria is subject to change without notice."
These criteria, if adopted by government to determine which speech to
ban, would be struck down as unconstitutional just as quickly as a
civil liberties organization could race into court and get a decision.
These criteria as written ban speech about the listed items, in most
cases even if the speech opposes the subject matter. For example, the
ban on information about "drugs or alcohol" is so broadly written as
to include sites maintained by anti-drug organizations or by
Alcoholics Anonymous. Note that almost all of the criteria pertain to
speech that, though disfavored by most people, is clearly
constitutionally protected, and may legitimately be the subject of a
child's research project: hate speech, speech about intolerance, and
speech about illegal activities are three examples. None of the
criteria make any exception for materials with social value. Thus the
criteria would not permit a teenager to research a report about the
Holocaust, which might fall under the ban on "gross depictions or
mayhem", antisemitism or hate speech. If this seems unlikely, it
isn't; CyberPatrol at one point blocked Nizkor, an important Holocaust
archive, because it contained "hate speech." In fact, the criteria
made available by every publisher of blocking software are
equivalently vague. As the Supreme Court said in a leading case
involving a Dallas movie rating scheme, " the restrictions imposed
cannot be so vague as to set 'the censor....adrift upon a boundless
sea...' In short, as Justice Frankfurter said, 'Legislation must not
be so vague, the language so loose, as to leave to those who have to
apply it too wide a discretion.'" Interstate Circuit v. Dallas, 390
U.S. 676 (1968).
In summary, the criteria followed by every existing blocking product
are far too vague and broad to meet the exacting standards of ACLU v.
Reno and decades of Supreme Court precedents, even if the library had
adopted these criteria itself. As we will see in the next section, the
delegation by the library of its decision-making to private
parties--the publishers of blocking software--is also
unconstitutional.
III. A Library Cannot Relegate to Private Parties The Authority to
Determine What Its Users Can See
Although the installation of blocking software by a library may be a
politically expedient solution, it involves an illegal delegation of
the library's authority to third parties. Since the library itself, as
we established in the section above, could not validly enforce vague
rules, it does not avoid the exacting requirements of the First
Amendment by abdicating responsibility to the blocking software
publisher.
For example, federal courts have established that government cannot
enact laws granting legal enforcement to the private ratings of the
Motion Picture Association of America (MPAA). In MPAA v. Spector, 315
F.Supp. 824 (ED Pa. 1970), the court dealt with a Pennsylvania law
making it a crime to permit a child to see a movie rated "R" or "X"
under the MPAA scheme. The court held the law unconstitutional:
The evidence clearly established that the Code and Rating
Administration of the Association has itself no defined standards or
criteria against which to measure its ratings. ...[I]t is manifest
from a reading of Act No. 100 that, however well-intended, it is so
patently vague and lacking in any ascertainable standards and so
infringes upon the plaintiffs' rights to freedom of expression, as
protected by the First and Fourteenth Amendments to the Federal
Constitution, as to render it unconstitutional....[T]the attempted
recourse to Association ratings is of no avail.
Other federal courts have agreed that " it is well-established that
the Motion Picture ratings may not be used as a standard for a
determination of constitutional status", Swope v. Lubbers, 560 F.Supp.
1328 (W.D. Mich. 1983). As one judge tartly observed in Engdahl v.
Kenosha, 317 F.Supp. 1133 (E.D. Wis. 1970):
This determination as to what is proper for minors in Kenosha is
made by a private agency, the Motion Picture Association of America.
It was conceded at the hearing upon the present motion that if the
Motion Picture Association utilized any standards whatsoever in
reaching its judgments as to what is an 'adult' movie, the
defendants are not aware of what these standards are.
Similarly, most public libraries buying blocking software will do so
with only a vague awareness, at best, of the standards (if any)
followed by the software publisher.
Under these clear legal precedents, a library cannot block its users
from accessing Internet sites based upon a vague or undisclosed set of
standards implemented by the publisher of the blocking software.
IV. Requiring a Patron To Ask The Librarian To Turn Off Blocking
Software Causes an Unconstitutional Chilling Effect
Some blocking software allows the user to turn off particular
categories of blocking, or to permit access selectively to blocked
sites. Pro-blocking advocates argue that even when a product blocks a
site erroneously, no harm is done, as the library user can request
that the librarian grant access to it.
This argument ignores significant Supreme Court precedents which hold
that forcing someone who wishes to read controversial speech to
request access to it chills the dissemination of such speech and is
therefore is a violation of the First Amendment.
In the case of Lamont v. Postmaster General 381 U.S. 301, 85 S.Ct.
1493 (1965), the Supreme Court invalidated section 305(a) of the
Postal Service and Federal Employees Salary Act of 1962, 76 Stat. 840,
which required postal patrons receiving "communist political
propaganda" to specifically authorize the delivery of each such piece
of mail. The Court found the Act to be unconstitutional "because it
require[d] an official act (viz., returning the reply card) as a
limitation on the unfettered exercise of the addressee's First
Amendment rights." Id., at 304, 85 S.Ct. at 1495. The Court recognized
the chilling effect such legislation would have on the exercise of
freedom of expression by postal patrons, who may become dissuaded from
accessing socially disfavored media:
This requirement is almost certain to have a deterrent effect,
especially as respects those who have sensitive positions. Their
livelihood may be dependent on a security clearance. Public
officials like schoolteachers who have no tenure might think they
would invite disaster if they read what the Federal Government says
contains the seeds of treason. Apart from them, any addressee is
likely to feel some inhibition in sending for literature which
federal officials have condemned as 'communist political
propaganda.' The regime of this Act is at war with the 'uninhibited,
robust, and wide-open' debate and discussion that are contemplated
by the First Amendment.
Justices Brennan and Goldberg, in a concurring opinion, said that
"[T]he right to receive publications is....a fundamental right. The
dissemination of ideas can accomplish nothing if otherwise willing
addressees are not free to receive and consider them."
More recently, the Court was asked to decide a similar issue related
to cable programming, in Denver Area Educational Telecommunications
Consortium v. FCC, 116 S.Ct. 2374 (1996). In question was the
constitutionality of section 10(b) of the Cable Television Consumer
Protection and Competition Act of 1992, 106 Stat. 1486, 47 U.S.C. ''
532(h), 532(j), which required cable providers to segregate and block
indecent programming, sending it only to subscribers who requested it
in writing. The Court found that the section was overly restrictive,
"'sacrificing' important First Amendment interests for too
'speculative a gain.'" The Court found that the "written notice"
requirement would discourage viewers concerned with their reputations
from accessing such channels for fear that their names might be
disclosed to others.
Requiring librarians to drop what they are doing and unblock a site
for a user is also an imposition on them. In Denver, the Court noted
that the segregate and block requirement imposed "added costs and
burdens....upon a cable system operator", encouraging the latter to
ban the speech entirely to avoid the burden of unblocking it.
Conclusion
The installation of blocking software by a public library is clearly
unconstititutional under relevant First Amendment case law.
Please contact Jonathan Wallace at jw@bway.net with any comments or
questions. For more information and for updated copies of this
document, check the Censorware page.
------------------------------
From: bruce@UGCS.CALTECH.EDU(Bruce J. Bell)
Subject: File 2--Re: Cu Digest, #9.83, Wed 12 Nov 97
Date: 16 Nov 1997 16:47:48 GMT
Here is my response to Wade Riddick's article in CuD #8.83:
>Date--Mon, 10 Nov 1997 15:01:24 -0600 (CST)
>From--Wade Riddick <riddick@MAIL.LA.UTEXAS.EDU>
>Subject--File 3--Response to Bell in #9.82
[...]
> First, I must address a general misinterpretation of the goal I
>have in mind. According to Mr. Bell, my plan for world domination is to
>"design all computers to refuse to duplicate data with a copyright
>notice." I don't know whose fault this misinterpretation is.
Aside from world domination, what's the difference between Riddick's
program and the above description? Read "digital copyright protocol"
for "copyright notice" if you like, and the effect is the same:
to require all computers to refuse to copy the protected data.
Now, various schemes of this sort are already in place for various
consumer electronics media (e.g., videotape, cable, satellite TV,
DAT tape, and DVD players). However, these are all non-programmable
embedded systems. The point of my original response is that the same
model that works in embedded systems will not work for computers, for
reasons that are not trivial, but universal and intractable.
Riddick's program for copyright enforcement ("RPCE", for short) is based
on the premise, "It is only a matter of balancing the interests involved".
What weights to use in such a balance should certainly be considered
carefully, but if you ignore everything outside these interests, you
are setting yourself up for failure.
You cannot simply legislate a thing to be so; you must consider your
ability to enforce it, and the consequences of attempting to do so.
The same goes double for trying to use the market, or the tort system,
to accomplish a similar goal. If your ideal is too far from reality,
the attempt won't work.
[...]
> He compares my proposal to the ill-fated Clipper Chip and then
>goes on to ask, "why would anybody buy crippled computers when un-crippled
>ones are available?" I have to ask if Mr. Bell has looked at the DVD
>drives being sold and if he's aware of what the media industry is trying
>to do to digital video. These devices already employ encryption. They are
>essentially crippled computers and people are already buying them.
> Furthermore, his analogy to the Clipper chip is flawed in that
>Clipper applied to two way phone conversations. Encryption has long been
>used as a distribution strategy for salable goods. Also, plenty of
>'Clipper'-like open accounting procedures are provided for in many digital
>currency schemes. They have to be or the financial institutions involved
>would have criminal charges filed against them (something I'm sure we'd
>all support, depending on the particular bank...).
The analogy to the Clipper chip is only flawed inasmuch as RPCE requires
that enforcement be universal, as opposed to the Clipper proposal, which
at least gave lip-service to "letting the market decide".
I agree that the DVD situation is deplorable, but I draw different
conclusions from it than Mr. Riddick does. In fact, it's a perfect
example of the problems of trying to force computers into a framework
they do not fit. It will be completely ineffective against real pirates,
it makes DVD more expensive, and (most importantly) it will be highly
inconvenient for everyone concerned. It also requires draconian control,
aspiring to make un-crippled DVD players unavailable (and preferably illegal).
There may well be a place for prior restraint in digital currency
systems. The difference is, again, that the digital currency is an
embedded system; the computer doesn't have to deal with the cash
in internal format. It doesn't have to do anything more than "push
the buttons" on the embedded system (much like the idea behind the
DVD's CSS ("Content Scrambling System"))
I view RPCE as an attempt to move the "Content Scrambling System" model
from an embedded system (the DVD drive and video decoder) to the computer,
rather than as some improvement on it.
> Moving on...
>
>>Although I'm sure this kind of proposal is a wet-dream to people in the
>>recording industry, the movie industry, and the FBI, I doubt it will
>>receive any kind of welcome from the computer industry, or from ISP's, or
>>from the lowly consumer.
>
> I cannot pretend to know the sexual predilections of these groups
>and I can only refer Mr. Bell to my concluding analysis of the conflicting
>interests involved in settling this issue which he appears not to have
>read. I omit the FBI for reasons I make clear in the letter (and if it's
>Mr. Bell's assertion that the government shouldn't have the right to issue
>search warrants to assist the victims of crime, he ought to stop being coy
>and just say so). I also point out that this proposal will be anything
>but an orgiastic financial fantasy to the distribution arms of the
>entertainment industry. If he disputes these conclusions of mine, he
>ought to attack my premises and reasoning instead of just saying I said
>something else.
I read Mr Riddick's entire letter; I was not convinced by it.
I did not note any concrete financial analyses, just speculations.
In his response, he suggests that the alternative to his program
is all entertainment being controlled by "entertainment cartels",
but fails to tell us why he thinks so.
If you can compel a copyright enforcement protocol by the threat of
civil liability, what is to keep the FBI from compelling a key escrow
system by threat of criminal and civil liability combined? The precedent
RPCE would set worries me as much as the direct consequences, which would
be bad enough in themselves. Merely saying that "it would be possible"
to preserve privacy does not mean it is likely. RPCE relies far too
heavily on "trusted third-parties" without saying where we will get them.
> As to the second half of the quotation, ISPs are *already* being
>beaten in the head with the "liability stick," as Mr. Bell puts it. I
>fail to see how by profiting from this beating they are any worse off.
The fact that ISP's are being sued does not mean that it is a necessary
part of the system. I suspect the fact that this is a new and unsettled
field without clear laws and precedents is more responsible for this state
of affairs.
The appropriate solution is to clearly state that ISP's are not
liable for the actions of their customers, rather than somehow using
the "beating-principle" as a basis for your entire economic system!
The notion that ISP's must find some way to profit from their own
abuse hardly seems fair.
[...]
> About watermarks Mr. Bell states,
>
>>Consider that deliberate 'pirates' could take the simple expedient of
>>finding multiple copies of the original work. Any elements in the
>>plaintext that are identical between all instances could not be used to
>>identify the original purchaser; while elements that differ are those
>>that may contain purchaser information, and can be scrambled, deleted, or
>>even ignored...
>
> More technically adept readers should stop me if I'm wrong here,
>but watermarks are by their nature indelible. You can't strip them from a
>picture without ruining the value of the picture.
If you only distribute a single watermarked version of the data, you may
be able to show, later, that you were the one who originated that version.
There may be other things you can do with digital watermarks, as well.
But, you cannot specify arbitrarily strong properties, and still expect
that such a protocol is still possible.
The above analysis simply indicates that there is no digital watermark
that can be used in the manner described in RPCE.
[...]
>>I submit that no software developer would accept the requirements and
>>limitations necessary for this proposal, even if they could sell it in a
>>market where software without these limitations is available. Perhaps
>>they, too, must be made liable for all users of their product..."
>
> I see no reason to advocate something that's already in the law.
>Anyone who builds and releases tools with the explicit purpose of stealing
>another's intellectual property is already liable. Indeed, I would hope
>software developers welcome proposals to reduce the rather large piracy
>rate robbing them of billions of dollars a year.
This is an unresponsive reply. The problem is, building software tools
that *cannot* be used to copy intellectual property is impractical.
Computers are useful because they can copy, manipulate, transmit, and
display data. To constrain all your tools so that they can't save, copy,
or transmit data will make them largely useless. No software developer
can make a useless product compete with a useful one.
This is, again, straightforwardly following Richard Stallman's speculations
that someday soon, development tools will be illegal. Only licensed
software professionals will be allowed to use debuugers, since unethical
hackers would otherwise use them to pirate software. And after all,
programming is too hard for most people anyway, so it won't be much of
a problem...
[...]
> This brings me to my final point about Mr. Bell's criticisms.
>It's pretty clear that, given the enormous pressures involved, something's
>going to change the status quo on copyright law. Mr. Bell fails to
>propose a more attractive alternative, explain why it's better or why it
>might be less expensive. In fact, he fails to take any account at all of
>the profits lost to piracy, the potential liability costs faced by ISPs if
>the law is changed/reinterpreted or the transaction costs that would be
>raised should our goods be delivered through a cartelized publishing
>industry.
Well, certainly there are industries with lots of money complaining
loudly about the advent of digital technology. The mere fact that they
are complaining (or even that they have money) doesn't mean that they
should get their way, though.
There are lots of industries where the economic games involved are
peculiar, and the way business gets done is far from ideal. Even without
digital copying, the entertainment industry is one of them. Software
piracy of various sorts isn't a new problem, and the software industry
functions without a complete solution.
------------------------------
Date: Sun, 16 Nov 1997 15:03:22 -0600 (CST)
From: Wade Riddick <riddick@MAIL.LA.UTEXAS.EDU>
Subject: File 3--Reply to Bell's forthcoming post
Please allow me to respond to Bruce J. Bell's forthcoming post in CuD.
--
OK, for all five of you still following the debate I'll make a final stab
at clearing up some of the smoke in this thread.
It's clear to me now that Mr. Bell himself is responsible for
misinterpreting the model, to what end I do not know. He apparently does
not view the comment on "world domination" with much humor, skeptical or
otherwise. Rather he embraces it literally and quite eagerly.
So Mr. Bond, before I kill you, let me better explain my nefarious
scheme...
According to Bell, under my proposal "the effect is the same: to require
all computers to refuse to copy the protected data." This is an attempt
to maliciously redefine my terms. Nothing, I repeat, nothing would
prevent a user from copying the protected, encrypted data. Nothing. You
could send it anywhere. You could rent it. You could sell it. You could
make multiple backups or possibly even incorporate parts of it in your own
products. It is your 'copy' to do with as you please. But like virtual
memory, one and only one copy 'exists' in the system at any given time.
This is *the* crucial thing you need to understand about this system.
Copyrights are a complex intellectual construct. Only the 'author' of a
copyrighted good owns the natural right to make more copies. However, in
the print world at least, the purchaser of a copy has many rights over
that good similar to those of ordinary items. (Note that these rights
have been progressively eroded in electronic mediums.)
For instance, I can buy a copy of _Dr. No_, get tired of it, go down to
the flea market and sell it for whatever price the market will bear. I
cannot, however, set about printing up and selling new copies of _Dr. No_.
That authority rests with the author (and thanks to contracts,
increasingly with a big publisher).
The special encrypted RAM cache in this model merely acts as a filter and
a barrier ensuring that the user does not 'publish' on his own copies by
gaining access to the information in decrypted form. But what's really
protected here are the keys. That's the special trick. And this
restriction is just like any other you face with the books on your self at
home. You 'own' the copy but you do not 'own' the material itself. Since
it's simply cached and filtered, there's no 'embeddedness' problem that he
alludes to. (I think this kills his development tools objection too, but
if you disagree you can write to me. The barriers to entry in the
computer programming industry are interesting in themselves).
Telerights adds no new restrictions on copyright ownership and, indeed,
stands to make many things possible again that currently are not (namely
the renting of software). Readers are, of course, free to believe Mr.
Bell's characterization if they wish but consider the consequences of not
understanding the stakes and the legal terrain.
While an allowance for temporary browsing has been made in the law, it's
still quite possible that permanent downloads of files and other materials
will not be permitted. Of course this isn't technically feasible, but
that didn't stop Hollywood from getting the flawed DVD spec pushed down
everyone's throat.
The practical market result would most likely be just what Hollywood wants
and is accustomed to: free content supported through channel subscriptions
or funded by advertising. As a small author, I'd rather not have to be
forced into those kinds of alliances to sell my products. What novelist
wants to write something controversial and then go hunting for an
advertiser? (This screening of _Seven_ is brought to you by
McDonald's...)
As to the means of doing this...
>You cannot simply legislate a thing to be so; you must consider your
>ability to enforce it, and the consequences of attempting to do so.
>The same goes double for trying to use the market, or the tort system,
>to accomplish a similar goal.
I do not propose additional legislation. I leave it up to Congress. In
fact if you read the letter closely, you'll notice I call for a moratorium
on further alterations to the copyright code until the market can sort
these issues out.
As to the issue of "trying to use the market," I must confess it's a
desperate, last resort on my part. I've tried appealing to the Central
Directorate of the People's Proletariat, but they seemed to have already
discovered that there's no money in Communism. (A nasty flaw, that.)
As to torts, I do wish Mr. Bell would stop confusing me with all these
feral lawyers we have running around in Texas. I am not the person who's
raised the liability issue here. It is already in play. And it is far
from settled. I merely propose that if it's an problem, make it a
profitable one for all parties involved. Use it as an incentive. (Rats,
there I go getting caught with my pants down, using the market again.)
For those of you who may have missed it, ISPs and others are getting
themselves kicked around by all the other industries' lobbyists on the
Hill. Computer makers haven't fair much better in the DVD debate. This
is not just my opinion. It is the opinion of Bell lobbyists, journalists
and even Congressmen. Liability *is* a problem that isn't going to be
easily fixed. "Common carrier" status has criteria that are quite
difficult to meet and it's anything but a foregone conclusion that ISPs
will get it, even in a modified form. Anyone who thinks that is naive, as
is anyone who thinks solving the ISP liability problem will solve it for
their users as well. It most certainly will not. This might shove it
onto the small user with disasterous consequences that Mr. Bell has failed
to consider.
There are persistent, deep and stubborn problems related to intellectual
property and they have everything to do with liability. They always will.
Whatever solution that is adopted will revolve around it. Period. It is
absurd to debate it further since liability has always been the basis of
the copyright system.
Back to the issue of watermarks.
>If you only distribute a single watermarked version of the data, you may
>be able to show, later, that you were the one who originated that
>version. There may be other things you can do with digital watermarks, as
>well. But, you cannot specify arbitrarily strong properties, and still
>expect that such a protocol is still possible.
>The above analysis simply indicates that there is no digital watermark
>that can be used in the manner described in RPCE.
Well, I don't know who this 'you' is and what 'protocol' he is referring
to but I'll attempt to address it one more time.
1) Every copy sold has a unique watermark.
2) It cannot be stripped from the data, even when the data is decrypted.
3) Therefore would-be pirates are stuck with it.
Indeed, watermarks have no "arbitrarily strong properties" (though I
confess I'm taking a guess at what he means here). Watermarks are
passive. That is why they cannot be relied on for primary enforcement of
strong digital copyrights. Monitoring requires an intrusive auditing
process and relies on few market incentives (relative to a telerights
model).
An example of this enforcement mechanism is BMI's Musicbot which scans web
sites for pirated tracks (though I think it's some kind of hash that's
used instead of a watermark). Currently, BMI is just notifying violators
that they're in trouble. In the future it's possible that they could use
such results to initiate law suits and, under a new law proposed in the
House, press local DA's to file criminal charges with the evidence.
Now this may just be me but personally the thought of somebody's software
scanning through *my* copyrighted information to see if I'm pirating
theirs is a little daunting. And if this is to be our primary mechanism,
it also makes it difficult for a little guy like me to enforce my rights
over my own material. What chance do I have of writing a 'bot and getting
it to run on everybody's server? Who decides whose 'bots run? (The guys
with the most money, maybe?)
So ironically (and though he'd deny it), it seems Mr. Bell and I agree on
something. I simply happen to think that an automated system of
accounting with certain built in legal guarantees is preferable to the
current course we're drifting down.
Finally, as to my characterization of the forces involved, Mr. Bell states
>Well, certainly there are industries with lots of money complaining
>loudly about the advent of digital technology. The mere fact that they
>are complaining (or even that they have money) doesn't mean that they
>should get their way, though.
No, it doesn't. Congress decides who gets their way, but it's rather
presumptuous to declare that the best argument will win without any
support. Although this is a democracy, on a particularly complex and
arcane issue like this - even though it affects many individuals - money
has an impact. (On the other hand, it would be arrogant to presume that
campaigns should be costless too; someone's got to pay).
The computer industry is just waking up to this and establishing a
lobbying presence and making campaign donations. And you know what?
Lobbying *can* be a good thing, despite all the bad press it receives.
Lobbying can supply information to our public representatives which helps
them craft better laws. It also brings some industries into conflict with
others and forces them to understand one another's position. A large part
of the CDA problem might have been avoided if the net industry, instead of
mobilizing a last minute brow-beat your Congressman campaign, had gone
behind the scenes from the start, accepted some of the concerns involved
and tried to work something out. Politics is about compromise.
Which brings me to my final point. We shouldn't expect everybody to be
universally delighted at the prospect of being forced to live with a
dilemma we were never able to fix for ourselves. Saying that
>Software piracy of various sorts isn't a new problem, and the software
>industry functions without a complete solution
and that therefore the entertainment industry should just have to live
with the problem like everyone else on a similar scale is ludicrous. It
stirs up the same kind of opposition (and money) that Mr. Bell has just
dismissed as so ineffective.
This is exactly the type of thinking that has landed us at this impasse.
The net community has got to be more sensitive to other concerns, like
those of the entertainment industry, and be willing to compromise. 'We'
do not own their intellectual products and though we profess to know this,
they read such statements in an entirely different light. And while it is
not fair for some in Hollywood to liken lawyers opposed to revising the
copyright code to Communists, we for our part have got to stop giving fuel
to their fire.
------------------------------
Date: Thu, 7 May 1997 22:51:01 CST
From: CuD Moderators <cudigest@sun.soci.niu.edu>
Subject: File 4--Cu Digest Header Info (unchanged since 7 May, 1997)
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