January 19, 2012

Copyright in Congress, Court, and Public

Filed under: Chilling Effects, censorship, code, copyright — wseltzer @ 4:30 pm

Yesterday, while hundreds of sites (including this one, along with Google, Wikipedia, and Reddit) were going black to protest SOPA and PIPA, the Supreme Court released its own copyright blackout, Golan v. Holder (PDF). Justice Ginsburg’s majority opinion held that the First Amendment did not prohibit reclaiming works from the public domain.

Justice Breyer, joined by Justice Alito, gave a stirring dissent. Copyright law, he said, must be “designed to encourage new production,” not just redistribute works already created. Re-copyrighting already-written works “does not encourage anyone to produce a single new work.” Instead, backwards-looking copyright grants create a serious public choice problem:

Whereas forward-looking copyright laws tend to benefit those whose identities are not yet known (the writer who has not yet written a book, the musician who has not yet composed a song), when a copyright law is primarily backward looking the risk is greater that Congress is trying to help known beneficiaries at the expense of badly organized unknown users who find it difficult to argue and present their case to Congress.

We see the same problem with SOPA and PIPA. The legislation pits organized incumbents against future innovators. Congress risks being captured by the lobbying power of current copyright industries, organized in the MPAA and RIAA, before the artists who have yet to create and the industries who support them can find their political voice. But the SOPAstrike reminds us that more than industry interests are at stake here — the general public, the editors of and users of Wikipedia, the contributors and readers of Reddit and the coders and browsers of Mozilla also create and bring value to the Internet.

Golan reminds us too that we can’t count on the courts to help us where Congress gets copyright wrong. The majority leaves a great deal to Congressional discretion, as it did in Eldred (striking down a challenge to copyright term extension): “the Copyright Clause does not demand that each copyright provision, examined discretely, operate to induce new works.” In a chilling phrase, the Golan majority quotes the district court’s finding of a “settled rule that private censorship via copyright enforcement does not implicate First Amendment concerns.”

Perhaps a later Court will see the First Amendment as a stronger check on Congressional power to restrict speech in the name of copyright, but where we can’t count on 5 (Justices), defenders of free communications on the open Internet will need to count to 51% of Congress. Keep up the pressure, it’s having an impact!

January 18, 2012

Keep Copyright Balance: Stop SOPA and PIPA

Filed under: Chilling Effects, censorship, code, copyright — wseltzer @ 7:48 am

As I wrote over on the Tor Project blog, SOPA and PIPA (the House’s “Stop Online Piracy Act” and the Senate’s “Protect-IP Act”) go beyond enforcement of copyright. These copyright bills would strain the infrastructure of the Internet, on which many free communications — anonymous or identified — depend. Originally, the bills proposed that so-called “rogue sites” should be blocked through the Internet’s Domain Name System (DNS). That would have broken DNSSEC security and shared U.S. censorship tactics with those of China’s “great firewall.”

Now, while we hear that DNS-blocking is off the table, the bills remain threatening to the network of intermediaries who carry online speech. Most critically to Tor, SOPA contained a provision forbidding “circumvention” of court-ordered blocking that was written broadly enough that it could apply to Tor — which helps its users to “circumvent” local-network censorship. Further, both bills broaden the reach of intermediary liability, to hold conduits and search engines liable for user-supplied infringement. The private rights of action and “safe harbors” could force or encourage providers to censor well beyond the current DMCA’s “notice and takedown” provision (of which Chilling Effects documents numerous burdens and abuses).

On January 18, we’re joining Wikipedia, Reddit, the MIT Media Lab, and hundreds of others in protest, turning a portion of the Tor site black to call attention to copyright balance and remind the US Congress and voters of the value of the open Internet.

U.S. citizens, please call or write, to urge your representatives to stop SOPA and PIPA. Elsewhere in the world, keep an eye out for similar legislation. and bring the fight there too.

December 15, 2011

Stopping SOPA’s Anti-Circumvention

Filed under: Chilling Effects, censorship, code, copyright, domain names — wseltzer @ 10:35 am

The House’s Stop Online Piracy Act is in Judiciary Committee Markup today. As numerous protests, open letters, and advocacy campaigns across the Web, this is a seriously flawed bill. Sen. Ron Wyden and Rep. Darrell Issa’s proposed OPEN Act points out, by contrast, some of the procedural problems.

Here, I analyze just one of the problematic provisions of SOPA: a new”anticircumvention” provision (different from the still-problematic anti-circumvention of section1201). SOPA’s anticircumvention authorizes injunctions against the provision of tools to bypass the court-ordered blocking of domains. Although it is apparently aimed at MAFIAAfire, the Firefox add-on that offered redirection for seized domains in the wake of ICE seizures,[1] the provision as drafted sweeps much more broadly. Ordinary security and connectivity tools could fall within its scope. If enacted, it would weaken Internet security and reduce the robustness and resilience of Internet connections.

The anticircumvention section, which is not present in the Senate’s companion PROTECT-IP measure, provides for injunctions, on the action of the Attorney General:

(ii)against any entity that knowingly and willfully provides or offers to provide a product or service designed or marketed by such entity or by another in concert with such entity for the circumvention or bypassing of measures described in paragraph (2) [blocking DNS responses, search query results, payments, or ads] and taken in response to a court order issued under this subsection, to enjoin such entity from interfering with the order by continuing to provide or offer to provide such product or service. § 102(c)(3)(A)(ii)

As an initial problem, the section is unclear. Could it cover someone who designs a tool for”the circumvention or bypassing of” DNS blockages in general — even if such a person did not specifically intend or market the tool to be used to frustrate court orders issued under SOPA? Resilience in the face of technological failure is a fundamental software design goal. As DNS experts Steve Crocker, et al. say in their Dec. 9 letter to the House and Senate Judiciary Chairs, “a secure application expecting a secure DNS answer will not give up after a timeout. It might retry the lookup, it might try a backup DNS server, it might even restart the lookup through a proxy service.” Would the providers of software that looked to a proxy for answers –products “designed” to be resilient to transient DNS lookup failures –be subject to injunction? Where the answer is unclear, developers might choose not to offer such lawful features rather than risking legal attack. Indeed, the statute as drafted might chill the development of anti-censorship tools funded by our State Department.

Some such tools are explicitly designed to circumvent censorship in repressive regimes whose authorities engage in DNS manipulation to prevent citizens from accessing sites with dissident messages, alternate sources of news, or human rights reporting. (See Rebecca MacKinnon’s NYT Op-Ed, Stop the Great Firewall of America. Censorship-circumvention tools include Psiphon, which describes itself as an “Open source web proxy designed to help Internet users affected by Internet censorship securely bypass content-filtering systems,” and The Tor Project.) These tools cannot distinguish between Chinese censorship of Tiananmen Square mentions and U.S. copyright protection where their impacts — blocking access to Web content — and their methods — local blocking of domain resolution — are the same.

Finally, the paragraph may encompass mere knowledge-transfer. Does telling someone about alternate DNS resolvers, or noting that a blocked domain can still be found at its IP address — a matter of historical record and necessary to third-party evaluation of the claims against that site — constitute willfully “providing a service designed … [for] bypassing” DNS-blocking? Archives of historic DNS information are often important information to legal or technical network investigations, but might become scarce if providers had to ascertain the reasons their information was being sought.

For these reasons among many others, SOPA should be stopped.

June 9, 2011

Editorials against PROTECT-IP

Filed under: Chilling Effects, censorship, copyright, domain names — wseltzer @ 2:40 pm

First the Los Angeles Times, now the New York Times have both printed editorials critical of the PROTECT-IP bill.

Both the LAT and NYT support copyright — and announce as much in their opening sentences. That doesn’t mean we should sacrifice Internet security and stability for legitimate DNS users, nor the transparency of the rule of law. As the LAT puts it “The main problem with the bill is in its effort to render sites invisible as well as unprofitable.” Pulling sites from search won’t stop people from reaching them, but will stifle public debate. Copyright must not be used to shut down the engine of free expression for others.

Let’s hope these policy criticisms, combined with the technical critiques from a crew of DNS experts will begin a groundswell against this poorly considered bill.

May 12, 2011

Debugging Legislation: PROTECT IP

Filed under: Chilling Effects, censorship, copyright, domain names, events — wseltzer @ 10:45 am

There’s more than a hint of theatrics in the draft PROTECT IP bill (pdf, via dontcensortheinternet ) that has emerged as son-of-COICA, starting with the ungainly acronym of a name. Given its roots in the entertainment industry, that low drama comes as no surprise. Each section name is worse than the last: “Eliminating the Financial Incentive to Steal Intellectual Property Online” (Sec. 4) gives way to “Voluntary action for Taking Action Against Websites Stealing American Intellectual Property” (Sec. 5).

Techdirt gives a good overview of the bill, so I’ll just pick some details:

  • Infringing activities. In defining “infringing activities,” the draft explicitly includes circumvention devices (”offering goods or services in violation of section 1201 of title 17″), as well as copyright infringement and trademark counterfeiting. Yet that definition also brackets the possibility of “no [substantial/significant] use other than ….” Substantial could incorporate the “merely capable of substantial non-infringing use” test of Betamax.
  • Blocking non-domestic sites. Sec. 3 gives the Attorney General a right of action over “nondomestic domain names”, including the right to demand remedies from (A) domain name system server operators, (B) financial transaction providers, (C), Internet advertising services, and (D) “an interactive computer service (def. from 230(f)) shall take technically feasible and reasonable measures … to remove or disable access to the Internet site associated with the domain name set forth in the order, or a hypertext link to such Internet site.”
  • Private right of action. Sec. 3 and Sec. 4 appear to be near duplicates (I say appear, because unlike computer code, we don’t have a macro function to replace the plaintiff, so the whole text is repeated with no diff), replacing nondomestic domain with “domain” and permitting private plaintiffs — “a holder of an intellectual property right harmed by the activities of an Internet site dedicated to infringing activities occurring on that Internet site.” Oddly, the statute doesn’t say the simpler “one whose rights are infringed,” so the definition must be broader. Could a movie studio claim to be hurt by the infringement of others’ rights, or MPAA enforce on behalf of all its members? Sec. 4 is missing (d)(2)(D)
  • WHOIS. The “applicable publicly accessible database of registrations” gets a new role as source of notice for the domain registrant, “to the extent such addresses are reasonably available.” (c)(1)
  • Remedies. The bill specifies injunctive relief only, not money damages, but threat of an injunction can be backed by the unspecified threat of contempt for violating one.
  • Voluntary action. Finally the bill leaves room for “voluntary action” by financial transaction providers and advertising services, immunizing them from liability to anyone if they choose to stop providing service, notwithstanding any agreements to the contrary. This provision jeopardizes the security of online businesses, making them unable to contract for financial services against the possibility that someone will wrongly accuse them of infringement. 5(a) We’ve already seen that it takes little to convince service providers to kick users off, in the face of pressure short of full legal process (see everyone vs Wikileaks, Facebook booting activists, and numerous misfired DMCA takedowns); this provision insulates that insecurity further.

In short, rather than “protecting” intellectual and creative industry, this bill would make it less secure, giving the U.S. a competitive disadvantage in online business.

UPDATE: Sen. Leahy has posted the bill with a few changes from the above-linked draft (thanks Ryan Radia for the link).

May 5, 2011

In DHS Takedown Frenzy, Mozilla Refuses to Delete MafiaaFire Add-On

Filed under: Chilling Effects, censorship, code, copyright, domain names — wseltzer @ 8:27 pm

Not satisfied with seizing domain names, the Department of Homeland Security asked Mozilla to take down the MafiaaFire add-on for Firefox. Mozilla, through its legal counsel Harvey Anderson, refused. Mozilla deserves thanks and credit for a principled stand for its users’ rights.

MafiaaFire is a quick plugin, as its author describes, providing redirection service for a list of domains: “We plan to maintain a list of URLs, and their duplicate sites (for example Demoniod.com and Demoniod.de) and painlessly redirect you to the correct site.” The service provides redundancy, so that domain resolution — especially at a registry in the United States — isn’t a single point of failure between a website and its would-be visitors. After several rounds of ICE seizure of domain names on allegations of copyright infringement — many of which have been questioned as to both procedural validity and effectiveness — redundancy is a sensible precaution for site-owners who are well within the law as well as those pushing its limits.

DHS seemed poised to repeat those procedural errors here. As Mozilla’s Anderson blogged: “Our approach is to comply with valid court orders, warrants, and legal mandates, but in this case there was no such court order.” DHS simply “requested” the takedown with no such procedural back-up. Instead of pulling the add-on, Anderson responded with a set of questions, including:

  1. Have any courts determined that MAFIAAfire.com is unlawful or illegal inany way? If so, on what basis? (Please provide any relevant rulings)

  2. Have any courts determined that the seized domains related to MAFIAAfire.com are unlawful, illegal or liable for infringement in any way? (please provide relevant rulings)
  3. Is Mozilla legally obligated to disable the add-on or is this request based on other reasons? If other reasons, can you please specify.

Unless and until the government can explain its authority for takedown of code, Mozilla is right to resist DHS demands. Mozilla’s hosting of add-ons, and the Firefox browser itself, facilitate speech. They, like they domain name system registries ICE targeted earlier, are sometimes intermediaries necessary to users’ communication. While these private actors do not have First Amendment obligations toward us, their users, we rely on them to assert our rights (and we suffer when some, like Facebook are less vigilant guardians of speech).

As Congress continues to discuss the ill-considered COICA, it should take note of the problems domain takedowns are already causing. Kudos to Mozilla for bringing these latest errors to public attention.

February 2, 2011

Super Bust: Due Process and Domain Name Seizure

Filed under: Internet, copyright, domain names, sports — wseltzer @ 10:22 pm

This domain name has been seizedWith the same made-for PR timing that prompted a previous seizure of domain names just before shopping’s “Cyber Monday,” Immigration and Customs Enforcement struck again, this time days before the Super Bowl, against “10 websites that illegally streamed live sporting telecasts and pay-per-view events over the Internet.” ICE executed seizure warrants against the 10, ATDHE.NET, CHANNELSURFING.NET, HQ-STREAMS.COM, HQSTREAMS.NET, FIRSTROW.NET, ILEMI.COM, IILEMI.COM, IILEMII.COM, ROJADIRECTA.ORG and ROJADIRECTA.COM, by demanding that registries redirect nameserver requests for the domains to 74.81.170.110, where a colorful “This domain name has been seized by ICE” graphic is displayed.

As in a previous round of seizures, these warrants were issued ex parte, without the participation of the owners of the domain names or the websites operating there. And, as in the previous rounds, there are questions about the propriety of the shutdowns. One of the sites whose domain was seized was Spanish site rojadirecta.com / rojadirecta.org, a linking site that had previously defeated copyright infringement claims in Madrid, its home jurisdiction. There, it prevailed on arguments that it did not host infringing material, but provided links to software and streams elsewhere on the Internet. Senator Ron Wyden has questioned the seizures, saying he “worr[ies] that domain name seizures could function as a means for end-running the normal legal process in order to target websites that may prevail in full court.”

According to ICE, the domains were subject to civil forfeiture under 18 U.S.C. § 2323(a), for “for illegally distributing copyrighted sporting events,” and seizure under § 981. That raises procedural problems, however: when the magistrate gets the request for seizure warrant, he or she hears only one side — the prosecutor’s. Without any opposing counsel, the judge is unlikely to learn whether the accused sites are general-purpose search engines or hosting sites for user-posted material, or sites providing or encouraging infringement. (Google, for example, has gotten many complaints from the NFL requesting the removal of links — should their domains be seized too?)

Now I don’t want to judge the sites’ legality one way or the other based on limited evidence. Chilling Effects has DMCA takedown demands from several parties demanding that Google remove from its search index pages on some of these sites — complaints that are themselves one-side’s allegation of infringement.

What I’d like to see instead is due process for the accused before domain names are seized and sites disrupted. I’d like to know that the magistrate judge saw an accurate affidavit, and reviewed it with enough expertise to distinguish the location of complained-of material and the responsibility the site’s owners bear for it: the difference between direct, contributory, vicarious, and inducement of copyright infringement (for any of which a site-owner might be held liable, in appropriate circumstances) and innocent or protected activity.

In the best case, the accused gets evidence of the case against him or her and the opportunity to challenge it. We tend to believe that the adversarial process, judgment after argument between the parties with the most direct interests in the matter, best and most fairly approaches the truth. These seizures, however, are conducted ex parte, with only the government agent presenting evidence supporting a seizure warrant. (We might ask why: a domain name cannot disappear or flee the jurisdiction if the accused is notified — the companies running the .com, .net, and .org registries where these were seized have shown no inclination to move or disregard US court orders, while if the name stops resolving, that’s the same resolution ICE seeks by force.)

If seizures must be made on ex parte affidavits, the magistrate judges should feel free to question the affiants and the evidence presented to them and to call upon experts or amici to brief the issues. In their review, magistrates should beware that a misfired seizure can cause irreparable injury to lawfully operating site-operators, innovators, and independent artists using sites for authorized promotion of their own materials.

I’d like to compile a set of public recommendations to the magistrate judges who might be confronted with these search warrants in the future, if ICE’s “Operation In Our Sites” continues. This would include verifying that the alleged infringements are the intended purpose of the domain name use, not merely a small proportion of a lawful general-use site.

September 21, 2010

Copyright, Censorship, and Domain Name Blacklists at Home in the U.S.

Filed under: Chilling Effects, Internet, censorship, copyright, trademark — wseltzer @ 12:33 pm

Last week, The New York Times reported that Russian police were using copyright allegations to raid political dissidents, confiscating the computers of advocacy groups and opposition newspapers “under the pretext of searching for pirated Microsoft software.” Admirably, Microsoft responded the next day with a declaration of license amnesty to all NGOs:

To prevent non-government organizations from falling victim to nefarious actions taken in the guise of anti-piracy enforcement, Microsoft will create a new unilateral software license for NGOs that will ensure they have free, legal copies of our products.

Microsoft’s authorization undercuts any claim that its software is being infringed, but the Russian authorities may well find other popular software to use as pretext to disrupt political opponents.

“Piracy” has become the new tax evasion, an all-purpose charge that can be lobbed against just about anyone. If the charge alone can prompt investigation — and any electronics could harbor infringing copies — it gives authorities great discretion to interfere with dissidents.

That tinge of censorship should raise grave concern here in the United States, where Patrick Leahy and Orrin Hatch, with Senate colleagues, have introduced the “Combating Online Infringement and Counterfeits Act.” (PDF).

This Bill would give the Attorney General the power to blacklist domain names of sites “offering or providing access to” unauthorized copyrighted works “in complete or substantially complete form, by any means, including by means of download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or Internet resources for obtaining such copies for accessing such performance or displays”; as well as those offering items with counterfeit trademarks. The AG could obtain court orders, through “in rem” proceedings against the domains, enjoining the domain name registrars or registries from resolving the names. Moreover, in the case of domains without a U.S. registrar or registry, other service providers, financial transaction providers, and even advertising servers could be caught in the injunctive net.

While the Bill makes a nod to transparency by requiring publication of all affected domain names, including those the Department of Justice “determines are dedicated to infringing activities but for which the Attorney General has not filed an action under this section,” it then turns that information site into a invitation to self-censorship, giving legal immunity to all who choose to block even those names whose uses’ alleged illegality has not been tested in court. (Someone who is listed must petition, under procedures to be determined by the AG, to have names removed from the list.)

Finally, the statute’s warped view — that allegations of infringement can only be good — is evident in the public inputs it anticipates. The public and intellectual property holders shall be invited to provide information about “Internet sites that are dedicated to infringing activities,” but there is no provision for the public to complain of erroneous blockage or lawful sites mistakenly or maliciously included in the blacklist.

Hollywood likes the Bill. Unfortunately, there’s plenty of reason to believe that allegations of infringement will be misused here in the United States. Even those who oppose infringement of copyright and trademark (myself included) should oppose this censorious attempt to stop it.

Cross-posted at Freedom to Tinker.

July 28, 2010

Jailbreaking Copyright’s Scope

Filed under: DMCA, code, markets, open, phone — wseltzer @ 8:29 am

A bit late for the rule’s “triennial” cycle, the Librarian of Congress has released the sec 1201(a)(1)(C) exceptions from the prohibitions on circumventing copyright access controls. For the next three years, people will not be ” circumventing” if they “jailbreak” or unlock their smartphones, remix short portions of motion pictures on DVD (if they are college and university professors or media students, documentary filmmakers, or non-commercial video-makers), research the security of videogames, get balky obsolete dongled programs to work, or make an ebook read-aloud. (I wrote about the hearings more than a year ago, when the movie studios demoed camcording a movie — that didn’t work to stop the exemption.)

Since I’ve criticized the DMCA’s copyright expansion, I was particularly interested in the inter-agency debate over EFF’s proposed jailbreak exemption. Even given the expanded “para-copyright” of anticircumvention, the Register of Copyrights and NTIA disagreed over how far the copyright holder’s monopoly should reach. The Register recommended that jailbreaking be exempted from circumvention liability, while NTIA supported Apple’s opposition to the jailbreak exemption.

According to the Register (PDF), Apple’s “access control [preventing the running of unapproved applications] does not really appear to be protecting any copyright interest.” Apple might have had business reasons for wanting to close its platform, including taking a 30% cut of application sales and curating the iPhone “ecosystem,” those weren’t copyright reasons to bar the modification of 50 bytes of code.

NTIA saw it differently. In November 2009, after receiving preliminary recommendations from Register Peters, Asst. Secretary Larry Strickling wrote (PDF):

NTIA does not support this proposed exemption [for cell phone jailbreaking]…. Proponents argue that jailbreaking will support open communications platforms and the rights of consumers to take maximum advantage of wireless networks and associated hardware and software. Even if permitting cell phone “jailbreaking” could facilitate innovation, better serve consumers, and encourage the market to utilize open platforms, it might just as likely deter innovation by not allowing the developer to recoup its development costs and to be rewarded for its innovation. NTIA shares proponents’ enthusiasm for open platforms, but is concerned that the proper forum for consideration of these public policy questions lies before the expert regulatory agencies, the U.S. Department of Justice and the U.S. Congress.

The debate affects what an end-user buys when purchasing a product with embedded software, and how far copyright law can be leveraged to control that experience and the market. Is it, as Apple would have it, only the right to use the phone in the closed “ecosystem” as dictated by Apple, with only exit (minus termination fees) if you don’t like it there? or is it a building block, around which the user can choose a range of complements from Apple and elsewhere? In the first case, we see the happenstance of software copyright locking together a vertically integrated or curated platform, forcing new entrants to build the whole stack in order to compete. In the second, we see opportunities for distributed innovation that starts at a smaller scale: someone can build an application without Apple’s approval, improving the user’s iPhone without starting from scratch.

NTIA would send these “public policy” questions to Congress or the Department of Justice (antitrust), but the Copyright Office and Librarian of Congress properly handled them here. “[T]he task of this rulemaking is to determine whether the availability and use of access control measures has already diminished or is about to diminish the ability of the public to engage in noninfringing uses of copyrighted works similar or analogous to those that the public had traditionally been able to make prior to the enactment of the DMCA,” the Register says. Pre-DMCA, copyright left room for reverse engineering for interoperability, for end-users and complementors to bust stacks and add value. Post-DMCA, this exemption helps to restore the balance toward noninfringing uses.

In a related vein, economists have been framing research into proprietary strategies for two-sided markets, in which a platform provider is mediating between two sets of users — such as iPhone’s end-users and its app developers. In their profit-maximizing interests, proprietors may want to adjust both price and other aspects of their platforms, for example selecting fewer app developers than a competitive market would support so each earns a scarcity surplus it can pay to Apple. But just because proprietors want a constrained environment does not mean that the law should support them, nor that end-users are better off when the platform-provider maximizes profits. Copyright protects individual works against unauthorized copying; it should not be an instrument of platform maintenance — not even when the platform is or includes a copyrighted work.

November 29, 2009

New Paper: Anticircumvention Versus Open Innovation

Filed under: DMCA, code, copyright, innovation, law — wseltzer @ 3:38 pm

Why did it take nearly a decade for portable video to move beyond compact DVD players? Why can we do so much more with music CDs and their successors than with DVDs and theirs? I argue the difference is baked-in DRM and its legal side-effects.

Copyright scholars have been talking for a long time about the DMCA and its impact on fair use — if your media is locked by DRM, you may be forbidden technologically from legally permissible criticism or transformation. (See the extraordinary lengths to which the MPAA goes in trying to say this isn’t so.) This is a serious problem, but it has bothered me that the focus has often eclipsed another DRM-induced problem, the foreclosure of open innovation and development around digital media.

In a draft paper, The Imperfect is the Enemy of the Good: Anticircumvention Versus Open Innovation, that will appear in the Berkeley Technology Law Journal this spring, I argue that conflicts with open development are a serious architectural flaw in anticircumvention law and policy. As we recognize the value of disruptive and user-driven innovation, we should shape the law to help, not hinder, this decentralized development.

Under an anticircumvention regime, the producers of media content can authorize or deny authorization to technologies for playing their works. Open source technologies and their developers cannot logically be authorized. “Open-source DRM” is a contradiction in terms, for open source encourages user modification (and copyleft requires its availability), while DRM compels “robustness” against those same user modifications. Since DRM aims to control use of content while permitting the user to see or hear it, it can be implemented only in software or hardware that is able to override its user’s wishes—and can’t be hacked to do otherwise. For a DRM implementation to make any sense, therefore, its barriers against user modification of the rights management must be at least as strong as those against user access to its protected content.

I characterize a “DRM imperative” and explore the technical incompatibilities between regulation by code and exploration of code. We see DRM centralizing development and forcing the black-boxing of complementary media technology, in a widening zone as it mandates that protected media be played only on compliant devices, that those may output media content only to other compliant devices, etc. The home media network is thus progressively closed to open-source development.

Foreclosing open development costs us technically, economically, and socially. We lose predicted technological improvements, those of user-innovators (von Hippel) or disruptive technologies (Christensen) from outside the incumbent-authorized set, that could offer new options for content creators and audiences (such as better playback, library, mixing, and commerce options). We lose social and cultural opportunities for commons-based peer production.

You can find the draft paper at SSRN, bepress, or here in PDF.

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