A lot of this legislation is completely misguided, and often rooted in the hands of people who are completely clueless about what they are talking about in this area.
We can complain about the balance of certain laws (or laws in general) but it is not true that the Congress and various interagency committees are clueless. They are provided with expertise by various interested parties and respond to the concerns that they hear about. The Internet Alliance ("IA") is willing to take some credit for the final shape of the cybercrine report. You can see their news release at here. The IA is concerned that any new laws would shift more responsibilty for enforcing the law onto the private sector which would be a form of tax. The news release cited above concludes with the statement that the IA was recently acquired by the Direct Marketing Association.
I happen to agree that there are plenty of laws available to prosecute "cybercriminals" when they do serious damage and the users of the web need to take more responsibility for making sure their own computers are secure.
According to the World Bank, U.S. GNP per capita (Atlas method, US$) in 1998 was 29,340 and Indian GNP per capita was US$ 430. Gross primary enrollment (% of school age population) in the US was 102 and in India was 101. Differences in education do not account for the staggering differences in output per capita. Ultimately, those differences are accounted for by differences in productivity.
Indian workers are less productive than U.S. workers for lots of reasons that boil down the almost complete lack of incentives to be productive. In the office buildings I worked in in Calcutta I saw dozens of men sitting around all day reading newspapers. It was explained to me that they couldn't be fired and they weren't working so they sat and got paid for doing nothing. At the factory I saw men sprawled out on the floors sleeping. A European contractor at the hotel told about machines being ruined by water because no one would take responsibility for protecting them. There is an almost total absence of accountability and avoiding responsibility is an art form.
I was told about high marginal tax rates that took away all incentive to make money and bureaucratic nightmares that discouraged all but the most driven from starting businesses. I worked with intelligent, interesting, educated people. They just didn't work very hard and their choice is rational.
We are relatively rich because we have organized ourselves so that wealth can be accumulated, have provided incentives that promote the efforts that create such wealth (such as intellectual property laws), and have resisted (mostly) the creation of disincentives to hard work such as lifetime employment.
The boom in e-commerce stocks is a form of prediction that the development of the web will raise productivity and output and thereby create even more wealth. Because the Indians don't have the infrastructure in place for most of the population, and are so far behind, (i.e. $29,340 vs. $430) it will be real hard to catch up to the point where they can exploit the web to any significant degree.
I had occasion to make four trips to India last year working with a big traditional (not computer or software) company and spent time in Calcutta, Delhi, and various parts of the hinterlands. The company used e-mail regularly both within the company and to communicate with me in the U.S. but browsing was out of the question because the telephone connections were so unreliable. Also, the electricity went out so many times that I stopped being surprised.
The adage that the rich get richer and the poor get poorer (at least relatively) applies in the digital world. We can advance by using the web because we have the computers, the electricity, and the telephone infastructure. The Indian people still have to figure out how they are organize their economy so that they have infastructure to underlies using the internet. After they solve that problem, they can worry about the social implications of exposure to who knows what on the web.
The DMCA was passed primarily to implement the U.S. obligations under the World Intellectual Property Organization Copyright Treaty and the Performances and Phonograms Treaty. The U.S. was the prime mover in establishing these treaties because (1) Americans increasingly derive their incomes from the fruits of intellectual property ("IP") rather than from actually manufacturing "things" and (2) American's IP in chemicals, software, artistic creations, and on and on, have been used on a large scale around the world without compensating the owners of that IP.
The need for extending the principles of copyright to the digital world should be obvious. The DMCA tries to do that but it remains to be seen how well it has been written because little of its novel provisions have been subject to judicial review.
There are some things that should be abundantly clear if you take the time to read the DCMA and the "Joint Explanatory Statement of the Committee of Conference". The first is that the Congress intended to keep intact the principles of "fair use" that allow you to make copies for non-commercial use such as "time shifting" television programs using your VCR and "space shifting" songs using your computer and RIO. The second is that Congress recognized that the application of the law in the world of the internet is a moving target and so included Sec. 104. "Evaluation of Impact of Copyright Law and Amendments on Electronic Commerce and Technological Development" which calls for studies to be undertaken and reports to Congress.
Clearly the DMCA has put a crimp in some of the neat ideas that fellow readers have come up with to exploit the web. Some almost certainly were blatant commercial use without license while others were probably grey enough to test the boundaries of the law. The problem is, of course, that it much cheaper to quit than fight the prosecution with qualified (i.e. high priced) legal talent. In that regard, it remains to be seen what the outcome of the DeCSS and Napster prosecutions will be. One can only hope that the defenses aren't botched and that the most reasoned precedents are established.
It is naive to assert that the DMCA is the way it is because the Congress is a tool of the RIAA just as it is naive to assert that you have the right to copy 10,000 songs using Napster because you can. The DMCA reflects the competing interests of lots of economic actors who either create, distribute, use, or study IP and the folk who actually make the hardware associated with the IP. The RIAA wins some, the computer makers win some, the librarians win some, and, believe it or not, the private consumer wins some. Eventually the competing interests are balanced and life goes on.
If the competing interests aren't sorted out in either the public forum or in private, we have a situation such as DVD-audio where consumers don't have it because the software and the hardware folk can't agree on how copyright protection will be implemented. You tell me whether waiting a couple extra years for a higher quality audio experience is an economic loss.
Recall that the law means what the courts say it means -- nothing more or less. What the Audio Home Recording Act of 1992, 17 U.S.C. S 1001 et seq. ("AHRA") means in the context of MP3 files on hard disks was dealt with concisely by the U.S. Court of Appeals for the Ninth Circuit in its opinion in RIAA v. Diamond Multimedia Systems, case number 98-56727, June 15, 1999.
The opinion can be found at www.ce9.uscourts.gov. Click on "opinions", 1999, June, and find RIAA v. Diamond.
The Court said: "The Act does not broadly prohibit serial copying of copyright protected audio recordings. Instead, the Act places restrictions only upon a specific type of recording device. Most relevant here, the Act provides that "[n]o person shall import, manufacture, or distribute any digital recording device . . . that does not conform to the Serial Copy Management System ["SCMS"] [or] a system that has the same functional characteristics." 17 U.S.C. S 1002(a)(1), (2) (emphasis added). The Act further provides that "[n]o person shall import into and distribute, or manufactore and distribute, any digital audio recording device . . . unless such person records the notice specified by this section and subsequently deposits the statements of account and applicable royalty payments." Id. S 1003(a) (emphasis added}"
The Court considers whether computer disk drives are "digital audio recording devices" and decides that they are not. The opinion relates to an appeal of a District Court ruling. The Court of Appeals for the 9th Circuit included a statement that must chill the hearts of the RIAA. It said: "The district court concluded that the exemption of hard drives from the definition of digital music recording, and the exemption of computers generally from the Act's ambit, "would effectively eviscerate the [Act] " because "[a]ny recording device could evade [ ] regulation simply by passing the music through a computer and ensuring that the MP3 file resided momentarily on the hard drive." RIAA I, 29 F. Supp. 2d at 630. While this may be true, the Act seems to have been expressly designed to create this loophole."
Finally, the Court said: "In fact, the Rio's operation is entirely consistent with the Act's main purpose -- the facilitation of personal use. As the Senate Report explains, "[t]he purpose of [the Act] is to ensure the right of consumers to make analog or digital audio recordings of copyrighted music for their private, noncommercial use." S. Rep. 102-294, at *86 (emphasis added). {discussion of home taping, time shifting fair use examples} Such copying is paradigmatic noncommercial personal use entirely with the purposes of the Act."
The lesson is that the statements of the RIAA tend to be more advocacy than accurate reporting of legal thought.
The U.S. program to substitute simulation for nuclear testing is described at www.sandia.gov/ASCI. Open the "program overview" link. Also, there is a lot of interest material on ASCI at gils.doe.gov/htmls/gils/query.html if you search on ASCI. These huge MPP's are specialized computers that lend themselves to a small set of problems. The real world work that gets done on supercomputers and other HPCs is done on a few processors. Look at www.marc.com where they brag about doing finite element analysis on a couple dozen processors. The simulations that give us cars to drive, planes to fly in and cruise missles to beat up on bad guys with are done using programs such as MSC NASTRAN (see www.mechsolutions.com ) on a very few processors with the hardest problems done on vector supercomputers.
SGI bought CRI because at the time, SGI was doing very well and thought there would be synergies and CRI was in deep trouble because of (1) the reduction in the defense/security purchases (2) loss of sales to NEC/Fujitsu worldwide and extreme price pressures due to Japanese producer dumping of vector supercomputers and (3) difficulties in getting the T90 series to market as a side effect of (1) and (2). SGI got into trouble because they didn't keep far enough ahead of the market -- they didn't advance their technology as fast/faster than the commodity graphics products. So, rather than bailing CRI out, SGI took CRI down with them. There will always be a market for vector supercomputers. Vectors are far easier to program than non-vector MPPs SMPs, etc. and there are always problems that are harder than the most powerful computers and whose solutions have enough value that the $10-30 million price tag of a big vector system seems to be a bargain. Automobile, aerospace, pharmaceutical companies all understand the economics. Weather forecasting models have similar need for more computational power and economic value. When SGI got into trouble they should have turned CRI loose rather than drag it down. The announcement doesn't say what is going to Tera in the deal, e.g. Eagan or Chippawa Falls but so it is hard to speculate on whether enough of CRI will be intact to remake the national treasure that CRI once was.
I am a parent of a college student and pay more than $30,000 per year to her college in tuition and fees. I would be distressed if the college viewed the enforcement of the copyright laws as an important part of its mission. I would be outraged if the college forbade my daughter's bio-psych professor from distributing photocopies of recent articles on brain function to the class because such copies apparently violate the copyright laws and would question the college's priorities if it wasted resources enforcing someone's interpretation of the copyright laws as they relate to Napster. I would be seriously troubled if the college reacted to evidence of inadequate bandwidth by restricting use rather than seeing unexpected growth as a leading indicator of the need for more capacity and allocated resources accordingly.
Slashdot Mirror
We can complain about the balance of certain laws (or laws in general) but it is not true that the Congress and various interagency committees are clueless. They are provided with expertise by various interested parties and respond to the concerns that they hear about. The Internet Alliance ("IA") is willing to take some credit for the final shape of the cybercrine report. You can see their news release at here. The IA is concerned that any new laws would shift more responsibilty for enforcing the law onto the private sector which would be a form of tax. The news release cited above concludes with the statement that the IA was recently acquired by the Direct Marketing Association.
I happen to agree that there are plenty of laws available to prosecute "cybercriminals" when they do serious damage and the users of the web need to take more responsibility for making sure their own computers are secure.
Indian workers are less productive than U.S. workers for lots of reasons that boil down the almost complete lack of incentives to be productive. In the office buildings I worked in in Calcutta I saw dozens of men sitting around all day reading newspapers. It was explained to me that they couldn't be fired and they weren't working so they sat and got paid for doing nothing. At the factory I saw men sprawled out on the floors sleeping. A European contractor at the hotel told about machines being ruined by water because no one would take responsibility for protecting them. There is an almost total absence of accountability and avoiding responsibility is an art form.
I was told about high marginal tax rates that took away all incentive to make money and bureaucratic nightmares that discouraged all but the most driven from starting businesses. I worked with intelligent, interesting, educated people. They just didn't work very hard and their choice is rational.
We are relatively rich because we have organized ourselves so that wealth can be accumulated, have provided incentives that promote the efforts that create such wealth (such as intellectual property laws), and have resisted (mostly) the creation of disincentives to hard work such as lifetime employment.
The boom in e-commerce stocks is a form of prediction that the development of the web will raise productivity and output and thereby create even more wealth. Because the Indians don't have the infrastructure in place for most of the population, and are so far behind, (i.e. $29,340 vs. $430) it will be real hard to catch up to the point where they can exploit the web to any significant degree.
The adage that the rich get richer and the poor get poorer (at least relatively) applies in the digital world. We can advance by using the web because we have the computers, the electricity, and the telephone infastructure. The Indian people still have to figure out how they are organize their economy so that they have infastructure to underlies using the internet. After they solve that problem, they can worry about the social implications of exposure to who knows what on the web.
The DMCA was passed primarily to implement the U.S. obligations under the World Intellectual Property Organization Copyright Treaty and the Performances and Phonograms Treaty. The U.S. was the prime mover in establishing these treaties because (1) Americans increasingly derive their incomes from the fruits of intellectual property ("IP") rather than from actually manufacturing "things" and (2) American's IP in chemicals, software, artistic creations, and on and on, have been used on a large scale around the world without compensating the owners of that IP.
The need for extending the principles of copyright to the digital world should be obvious. The DMCA tries to do that but it remains to be seen how well it has been written because little of its novel provisions have been subject to judicial review.
There are some things that should be abundantly clear if you take the time to read the DCMA and the "Joint Explanatory Statement of the Committee of Conference". The first is that the Congress intended to keep intact the principles of "fair use" that allow you to make copies for non-commercial use such as "time shifting" television programs using your VCR and "space shifting" songs using your computer and RIO. The second is that Congress recognized that the application of the law in the world of the internet is a moving target and so included Sec. 104. "Evaluation of Impact of Copyright Law and Amendments on Electronic Commerce and Technological Development" which calls for studies to be undertaken and reports to Congress.
Clearly the DMCA has put a crimp in some of the neat ideas that fellow readers have come up with to exploit the web. Some almost certainly were blatant commercial use without license while others were probably grey enough to test the boundaries of the law. The problem is, of course, that it much cheaper to quit than fight the prosecution with qualified (i.e. high priced) legal talent. In that regard, it remains to be seen what the outcome of the DeCSS and Napster prosecutions will be. One can only hope that the defenses aren't botched and that the most reasoned precedents are established.
It is naive to assert that the DMCA is the way it is because the Congress is a tool of the RIAA just as it is naive to assert that you have the right to copy 10,000 songs using Napster because you can. The DMCA reflects the competing interests of lots of economic actors who either create, distribute, use, or study IP and the folk who actually make the hardware associated with the IP. The RIAA wins some, the computer makers win some, the librarians win some, and, believe it or not, the private consumer wins some. Eventually the competing interests are balanced and life goes on.
If the competing interests aren't sorted out in either the public forum or in private, we have a situation such as DVD-audio where consumers don't have it because the software and the hardware folk can't agree on how copyright protection will be implemented. You tell me whether waiting a couple extra years for a higher quality audio experience is an economic loss.
'nuf said.
Recall that the law means what the courts say it means -- nothing more or less. What the Audio Home Recording Act of 1992, 17 U.S.C. S 1001 et seq. ("AHRA") means in the context of MP3 files on hard disks was dealt with concisely by the U.S. Court of Appeals for the Ninth Circuit in its opinion in RIAA v. Diamond Multimedia Systems, case number 98-56727, June 15, 1999.
The opinion can be found at www.ce9.uscourts.gov.
Click on "opinions", 1999, June, and find RIAA v. Diamond.
The Court said: "The Act does not broadly prohibit serial copying of copyright protected audio recordings. Instead, the Act places restrictions only upon a specific type of recording device. Most relevant here, the Act provides that "[n]o person shall import, manufacture, or distribute any digital recording device . . . that does not conform to the Serial Copy Management System ["SCMS"] [or] a system that has the same functional characteristics." 17 U.S.C. S 1002(a)(1), (2) (emphasis added). The Act further provides that "[n]o person shall import into and distribute, or manufactore and distribute, any digital audio recording device . . . unless such person records the notice specified by this section and subsequently deposits the statements of account and applicable royalty payments." Id. S 1003(a) (emphasis added}"
The Court considers whether computer disk drives are "digital audio recording devices" and decides that they are not. The opinion relates to an appeal of a District Court ruling. The Court of Appeals for the 9th Circuit included a statement that must chill the hearts of the RIAA. It said:
"The district court concluded that the exemption of hard drives from the definition of digital music recording, and the exemption of computers generally from the Act's ambit, "would effectively eviscerate the [Act] " because "[a]ny recording device could evade [ ] regulation simply by passing the music through a computer and ensuring that the MP3 file resided momentarily on the hard drive." RIAA I, 29 F. Supp. 2d at 630. While this may be true, the Act seems to have been expressly designed to create this loophole."
Finally, the Court said: "In fact, the Rio's operation is entirely consistent with the Act's main purpose -- the facilitation of personal use. As the Senate Report explains, "[t]he purpose of [the Act] is to ensure the right of consumers to make analog or digital audio recordings of copyrighted music for their private, noncommercial use." S. Rep. 102-294, at *86 (emphasis added). {discussion of home taping, time shifting fair use examples} Such copying is paradigmatic noncommercial personal use entirely with the purposes of the Act."
The lesson is that the statements of the RIAA tend to be more advocacy than accurate reporting of legal thought.
The U.S. program to substitute simulation for nuclear testing is described at www.sandia.gov/ASCI. Open the "program overview" link. Also, there is a lot of interest material on ASCI at gils.doe.gov/htmls/gils/query.html if you search on ASCI. These huge MPP's are specialized computers that lend themselves to a small set of problems. The real world work that gets done on supercomputers and other HPCs is done on a few processors. Look at www.marc.com where they brag about doing finite element analysis on a couple dozen processors. The simulations that give us cars to drive, planes to fly in and cruise missles to beat up on bad guys with are done using programs such as MSC NASTRAN (see www.mechsolutions.com ) on a very few processors with the hardest problems done on vector supercomputers.
SGI bought CRI because at the time, SGI was doing very well and thought there would be synergies and CRI was in deep trouble because of (1) the reduction in the defense/security purchases (2) loss of sales to NEC/Fujitsu worldwide and extreme price pressures due to Japanese producer dumping of vector supercomputers and (3) difficulties in getting the T90 series to market as a side effect of (1) and (2). SGI got into trouble because they didn't keep far enough ahead of the market -- they didn't advance their technology as fast/faster than the commodity graphics products. So, rather than bailing CRI out, SGI took CRI down with them. There will always be a market for vector supercomputers. Vectors are far easier to program than non-vector MPPs SMPs, etc. and there are always problems that are harder than the most powerful computers and whose solutions have enough value that the $10-30 million price tag of a big vector system seems to be a bargain. Automobile, aerospace, pharmaceutical companies all understand the economics. Weather forecasting models have similar need for more computational power and economic value. When SGI got into trouble they should have turned CRI loose rather than drag it down. The announcement doesn't say what is going to Tera in the deal, e.g. Eagan or Chippawa Falls but so it is hard to speculate on whether enough of CRI will be intact to remake the national treasure that CRI once was.
I am a parent of a college student and pay more than $30,000 per year to her college in tuition and fees. I would be distressed if the college viewed the enforcement of the copyright laws as an important part of its mission. I would be outraged if the college forbade my daughter's bio-psych professor from distributing photocopies of recent articles on brain function to the class because such copies apparently violate the copyright laws and would question the college's priorities if it wasted resources enforcing someone's interpretation of the copyright laws as they relate to Napster. I would be seriously troubled if the college reacted to evidence of inadequate bandwidth by restricting use rather than seeing unexpected growth as a leading indicator of the need for more capacity and allocated resources accordingly.