DMCA–use it and you will lose it, Gang of Eight

Let’s not forget just who the Gang of Eight, comprising the AACS LA, are, as shown on the AACS LA website:

(note: this is a screen capture from a website, so the links don’t work)

aacsla_gang_of_eight.png

The AACS LA is desperately trying to spin their clamp down on the publication of the licensing key in terms other than free speech. Of course, they will lose this, as it is a freedom of speech issue. The key is just a number, and anyway you cut it, making the publication of a number illegal is wrong. I’ll summarize some of the reasons why, and most importantly, what is to be done about this below the fold.

Ed Felten sums up some of the the reasons why most technically-inclined folks disagree with the AACS LA on this issue, and rather then restate what Ed has already said, here’s his reasoning:

The answer has several parts. The first answer is that it’s a reaction against censorship. Net users hate censorship and often respond by replicating the threatened content. When Web companies take down user-submitted content at the behest of big media companies, that looks like censorship. But censorship by itself is not the whole story.

The second part of the answer, and the one most often missed by non-techies, is the fact that the content in question is an integer — an ordinary number, in other words. The number is often written in geeky alphanumeric format, but it can be written equivalently in a more user-friendly form like 790,815,794,162,126,871,771,506,399,625. Giving a private party ownership of a number seems deeply wrong to people versed in mathematics and computer science. Letting a private group pick out many millions of numbers (like the AACS secret keys), and then simply declare ownership of them, seems even worse.

While it’s obvious why the creator of a movie or a song might deserve some special claim over the use of their creation, it’s hard to see why anyone should be able to pick a number at random and unilaterally declare ownership of it. There is nothing creative about this number — indeed, it was chosen by a method designed to ensure that the resulting number was in no way special. It’s just a number they picked out of a hat. And now they own it?

As if that’s not weird enough, there are actually millions of other numbers (other keys used in AACS) that AACS LA claims to own, and we don’t know what they are. When I wrote the thirty-digit number that appears above, I carefully avoided writing the real 09F9 number, so as to avoid the possibility of mind-bending lawsuits over integer ownership. But there is still a nonzero probability that AACS LA thinks it owns the number I wrote.

However, there are another group of reasons, besides the ones Ed discusses and they all have to do with users losing control of their own machines. DRM technology takes users control away from their own PC’s, and makes someone’s own PC obey instructions, not that the user gives it, but ones that the AACS LA or other organization tells it to do.

The analogy that the AACS LA is trying to spin in the media is that distribution of the key is akin to distributing the combination to my bicycle lock. But that analogy is deeply flawed, because the key is to something I already own, that is a Blu-Ray or HD-DVD drive. If I own a PC, I should be able to use it in the way I see fit, not how the AACS LA sees fit. It really is that simple, so I should simply say: Stop trying to steal my PC from me AACS LA!

If that right is taken away, the PC revolution is in danger. The PC has been an enormously empowering invention, leveling the playing field between individuals and large corporations, and placing the means of production in the hands of many. There are those who would like very much to put the PC genie back in the bottle, and take control of PC’s away from users. All that is made possible by DRM. So when Ed Felten says:

It will be interesting to see what AACS LA does next. My guess is that they’ll cut their losses, refrain from sending demand letters and filing lawsuits, and let the 09F9 meme run its course.

I rather disagree, seeing that there seems to be a deeply malevolent streak in some of the public statements by the AACS LA. The AACS LA seems to want to really fight it out, and really go after someone. As covered at the BBC website:

Bloggers “crossed the line” when they posted a software key that could break the encryption on some HD-DVDs, the AACS copy protection body has said.

Thousands of websites published the key, which had been uncovered in a bid to circumvent digital rights management (DRM) technology on HD-DVD discs.

Many said they had done this as an exercise in free speech.

An AACS executive said it was looking at “legal and technical tools” to confront those who published the key.

….

Michael Ayers, chair of the AACS business group, said it had received “good cooperation from most folk” in preventing the leak of the key.

He described the row between Digg and its users as an “interesting new twist”.

“It started out as a circumvention effort six to eight weeks ago but we now see the key on YouTube and on T-Shirts.

“Some people clearly think it’s a First Amendment issue. There is no intent from us to interfere with people’s right to discuss copy protection. We respect free speech.

“They can discuss the pros and cons. We know some people are critical of the technology.

“But a line is crossed when we start seeing keys being distributed and tools for circumvention. You step outside of the realm of protected free speech then.”

He said tracking down everyone who had published the keys was a “resource intensive exercise”. A search on Google shows almost 700,000 pages have published the key.

Ok, they are in fact really, really silly. But here Mr Ayers says something that indicates is really, really dumb, and viscious too:

Mr Ayers said that while he could not reveal the specific steps the group would be taking, it would be using both “legal and technical” steps to prevent the circumvention of copy protection.

“We will take whatever action is appropriate,” he said. “We hope the public respects our position and complies with applicable laws.”

The public neither respects your position, nor does it feel obligated to comply with an unjust law. On the contrary, certain portions of the public feel compelled to disobey such unjust laws. Many even feel that it would be immoral NOT to break such a law.

And remember this: if you are going to start suing posters, you will in fact lose, and lose big. Just read about Dmitry Skylarov, or talk to someone at Adobe who mishandled that case. Mr Ayers, if you think that you have seen all of this rebelion at digg over their decision to remove posts with your key, you ain’t seen nothing yet. If you actually sued 1/1000 of those who posted the code, using the DMCA there would be major fallout, and the DMCA would be history.

But, the DMCA won’t become history be itself. Those who are concerned must speak out, and speak out now, very loudly. Politely, yes, but loud too. After all, it is our freedoms that are at stake.

The action to take? The AACS LA is just a scheme by a few large corporation to do their dirty work. We can’t let those corporations distance themselves from the AACS LA.

So, from the AACS LA website, the corporate founders are:

IBM, Intel, Microsoft, Panasonic, Sony, Toshiba, Walt Disney Co. & Warner Bros.

This is the ‘Gang of Eight’ that we should boycott, if we are really opposed the suppression of our First Amendment rights. The one that might be amenable to pressure, and probably doesn’t fit in with the others is IBM. Panasonic , Intel, and Toshiba, as hardware manufacturers, are only in this group because they want to see their hardware gain market traction, and for that to happen, they need to bring the content owners (Sony, Walt Disney, Warner Bros and perhaps even Microsoft*) along only until their format has market acceptance. Once that happens, they don’t need AACS LA anymore. They just want to sell hardware that works, and tho the extent DRM stops that, it stops hardware sales. So Intel, Toshiba, and Panasonic may yeild to some amount of market/community pressure.

IBM, however, has a substantial amount of their future business plans invested in open source. The open source community could start pressuring IBM to leave the AACS LA. IBM will, of course, try to distance themselves from the actions of the AACS LA. Of course they will, those actions are abhorrent. The community should accept nothing less then IBM’s leaving the AACS LA as a condition of halting any boycott against IBM.

* It is, of course, very doubtful that Microsoft has any IP content that is worth protecting, but they seem to think they do, so I won’t enter into that tangent here

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1 comment
  1. AlexM said:

    I found your site on technorati and read a few of your other posts. Keep up the good work. I just added your RSS feed to my Google News Reader. Looking forward to reading more from you down the road!

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