Surefire Way To Stifle Innovation

denissmith writes "C|NET has a very funny piece by Patrick Ross, where he pooh-pooh's Congressman Rick Boucher's (D-VA) efforts to protect Fair Use by claiming that it will stifle innovation." From the article: "If HR-1201 becomes law, every consumer could legally hack any TPM by claiming fair use, and as fair use isn't codified, there would be as many definitions of it as there are consumers. Consumers would be legally sanctioned to break their contracts with the content provider. No sane business operator enters a contract in which one party has the right to disregard its terms at will, but that's what HR-1201 permits. That hated TPM would disappear from the market, as there's no reason to employ a lock if everyone has a legal right to the key. But as TPM leaves, so do the digital offerings that come with it."

Comments

This guy is an industry shill

[Powercntrl]

Biography
Patrick Ross works for The Progress & Freedom Foundation, a think tank based in Washington, D.C., and its Center for the Study of Digital Property. Earlier this week, the Progress & Freedom Foundation filed a brief with the Supreme Court supporting the RIAA and MPAA in their legal fight against file-swapping software companies Grokster and StreamCast Networks.

'nuff said.

Re:This guy is an industry shill

[BJH]

Indeed. Their site is here; let's have a quick look at how they describe themselves, shall we? Translation in italics.

"The Progress & Freedom Foundation is a market-oriented [corporate-centric] think tank that studies the digital revolution and its implications for public policy. Its mission is to educate [lobby] policymakers, opinion leaders and the public about issues associated with technological change, based on a philosophy of limited government [Don't legislate against us, only for us], free markets [Ditto] and individual sovereignty [Don't let consumer rights groups interfere with us making money].

PFF's research combines academic analysis [paid-for studies] with a practical understanding of how public policy is actually made [yet more lobbying]. Its senior fellows and other scholars are leading experts in their fields, with distinguished careers in government [ex-government officials turned lobbyists], business [corporate mouthpieces], academia [assistant lecturers desparate for grant money] and public policy [our pet politicians]. Its research is substantive, scholarly and unbiased [Liar! Liar! Pants on fire!]. At the same time [yes, we really were lying in the previous sentence], PFF is focused on having an impact on public policy.

PFF's underlying philosophy combines an appreciation for the positive impacts of technology with a classically conservative view of the proper role of government [See previous comment about not interfering with us making money]. We believe that the technological change embodied in the digital revolution has created tremendous opportunities for enhanced individual liberty [See previous comment about those goddamn consumer rights groups], as well as wealth creation [for us] and higher living standards [for us]. Those opportunities can only be realized if governments resist the temptation to regulate [DMCA? What's that? Extension of copyright? Never heard of it] , tax [us] and control [us]. Government has important roles to play in society [like helping us], including protecting [our] property rights and individual liberties [hahahaha], but its tendency is to reach beyond its legitimate functions in ways that harm [help] consumers, burden citizens [with all this messy legal stuff they really don't need to know about, right? By the way, Mr. Senator, how many callgirls will you be needing tonight?] and slow progress [of the growth of our bank balances]."

Re:This guy is an industry shill

[mkoenecke]

Drat. Used up my mod points yesterday. Yes, this fellow has the same right to be heard as everyone else, but it is highly relevant to point out that he is not speaking from principle but making an argument on behalf of commercial interests. To me, and to most people I think, that reduces his credibility by several orders of magnitude.

Confused

[AKAImBatman]

Wait. Based on the summary, I don't understand which way the GroupThink(TM) is supposed to go here. Is it good? Is it bad? Help me! I'm so confused!

Honestly, I think this is the first time I've seen a summary that doesn't try to put a spin on the article one way or another. (Not that such things are always the fault of the posters. So called "objective journalists" are just as bad, if not worse.) The summary, and the article, come across clearly that this is a double-edged sword. By taking the opposite extreme in an attempt to balance out the DMCA, this bill may cause extrodinary harm to the businesses who produce the content that consumers want to have fair use rights over. Causing harm to them would cause a reduction in quality and quantity of content production, just as the DMCA has caused a change in consumer purchasing habits.

The golden middle is to not muck with laws that work in the first place. Sadly, we're far beyond that. None the less, the DMCA has not had as chilling of an effect as was once expected. As the Lexmark vs. SCC case has shown, courts are beginning to find in favor of fair use, slowly erroding the power of the DMCA by way of precident.

Will this new bill help or hurt? I think that remains to be seen.

As an aside, I have to say that I'm getting pretty tired of the "defend the innovation!" cry. Microsoft used the same line of B.S. in their court cases, and it didn't sway public opinion then any more than shouting it from the rooftops will sway public opinion now. Let's see these companies who are using this line actually do something innovative for a change, then we'll think about accepting it. In the meantime, it's a tainted as the buzzword "Synergy".

Re:Confused

[Chris Burke]

The summary, and the article, come across clearly that this is a double-edged sword. By taking the opposite extreme in an attempt to balance out the DMCA, this bill may cause extrodinary harm to the businesses who produce the content that consumers want to have fair use rights over.

It comes across clearly that the author thinks it is a double-edged sword, but it isn't clear that it is.

His claim is that consumers could legally hack any DRM scheme by claiming fair use, which "isn't codified". That's wrong. There may not be a clear line in some cases, but it is absolutely codified and has a lot of case history involved, and the kind of copying the businesses we're talking about are worried about does clearly fall in the not-fair-use side. So he's also wroing in that a person could not legally claim fair use and hack the DRM for any reason they want.

His argument boils down to: Consumers "purchas[ing] exactly the amount of use they need" from big content industry is "innovation", big content won't distribute content without DRM, and allowing citizens to exercise fair use rights without being sued for breaking DRM in doing so is the same as not having DRM at all.

Like you, I don't think we can really say what the result will be without at least reading the law, and then seeing how it is played out in reality. But based this article's take on what the bill does, this article's take on the result is utter crap.

None the less, the DMCA has not had as chilling of an effect as was once expected.

I know! People were predicting that someone could be arrested merely for discussing a security flaw, resulting in security researchers being afraid to visit the U.S., and what a load of hogwash that turned out to be.

But in all seriousness, I think the extent to which the DMCA has failed to have a "chilling effect" is the extent to which people have either ignored it or not been under the jurisdiction of the government that created it. Mostly the latter. Where did DeCSS come from again? And why isn't it in my us.debian.org apt repository, or any other U.S. distro?

As the Lexmark vs. SCC case has shown, courts are beginning to find in favor of fair use, slowly erroding the power of the DMCA by way of precident.

All the Lexmark case showed was that a company can't use the DMCA for whatever the fuck it wants whenever it wants. Lexmark was essentially claiming that the chip on their cartridges was an access control mechanism to protect the copyrighted code on the chip on their cartridges, so making a compatible interface was a DMCA violation. If the courts had bought this, it would have been an expansion of the power of the DMCA. Not expanding isn't the same as eroding at all.

The demand a one way street

[sean23007]

No sane business operator enters a contract in which one party has the right to disregard its terms at will

That's funny, because every single one of them does it. If you've ever signed a contract for any kind of service, such as cable/satellite TV, DSL, cellular phones, etc, the contract includes the clause: "$COMPANY maintains the right to change the terms of this agreement without notice" or something to that effect. So basically, what he really means is that no sane business enters a contract in which the terms are fair, or that they don't have complete control over their ability to screw the customer in the future. Cute claim, though, since most people don't read that far into the contract (and there's nothing you can do about it, since you need to get your internet and telephone service from them, and you can't get it without agreeing to let them change the terms on you).

I ran into this problem myself with SBC DSL recently, wherein they changed the terms of the contract after I signed it, stating that after one year, the price goes up three-fold. They didn't even inform me of the change, and acted as if it had always been that way, even though I read the contract and that was not there, and the person on the phone when I ordered the service assured me that there was no such price hike after one year (I specifically asked).

Where's the logic?

[brokenarmsgordon]

I hear this argument all the time and it never makes any sense to me. When the MPAA was fighting for the broadcast flag, they flat-out threatened to stop making television and movies. They said that it would not be worth their while unless they could exercise absolute control over the content.

I've never seen a more obvious bluff in my entire life. It's like a child threatening to hold his breath until you give in to what he wants. It has no more substance than the "blockbusters" they produce.

They will not stop making movies or television or music because of piracy or anything else. Why? Because then they'd be making no money. They're threatening to stop making money. The TPM argument (I guess "TPM" sounds better than "DRM") is no different. Without (DR/TP)M, businesses and their advocates muse, no one will make digital content.

Good. I hope the MPAA and the RIAA and everyone else bows out because the business is just "too risky" from their point of view. The second they do so, they give away their market. Television, movies and music are a very, very competitive business, and there are thousands of people trying to work their way into it every day. There are thousands of people who want their shot at the billions these companies make and there are thousands more who would pleased with the chance to give their stuff away just for a little recognition. Someone else would step in immediately, hopefully or even probably with a better attitude for the market, and seize what can only be deemed a mythical opportunity.

To suddenly give up a huge position of power and influence... a position that might never been attainable again, is ludicrous. It's a bluff. The MPAA and RIAA have everything to lose by stepping out of the market and we, the consumers, and have everything to gain.

I just don't understand their argument at all.

Re:Surest Way To Stifle Innovation

[m4dm4n]

Prevention fit just fine, even if it was wrong.