2003 May 09 [9:02 am]
(entry last updated: 2003-05-09 23:39:26)
Another Mike Langberg piece from the San Jose Mercury News: CD, DVD duplicators easy to use but won’t let you burn Hollywood - reporting on the power of the CD/DVD duplicator and its rejection of movie DVDs - would DeCSS make a difference?
Here’s a lovely story: Record Executive Expected to Thrive Despite Setback [pdf]
Off-topic chuckle of the day, courtesy of the New York Post: 9/11 PLOT HIDDEN IN E-PORN (oops! it appears that the error has been corrected <G> - update: Nope! it’s still there!)
Investigators believe cell members were using a process called stenography, in which special software allows a text message to be hidden inside a small part of a computer photograph.
Derek and Slashdot both point to an Orrin Kerr article: Cybercrime’s Scope: Interpreting “Access” and “Authorization” in Computer Misuse Statutes. Like Derek, I haven’t read it yet, but it looks like I need to:
In the last twenty-five years, the federal government and all fifty states have enacted new criminal laws that prohibit unauthorized access to computers. These new laws attempt to draw a line between criminality and free conduct in cyberspace. No one knows what it means to “access” a computer, however, nor when access becomes “unauthorized.” The few courts that have construed these terms have offered divergent interpretations, and no scholars have yet addressed the problem. Recent decisions interpreting the federal statute in civil cases suggest that any breach of contract with a computer owner renders use of that computer an unauthorized access. If applied to criminal cases, this approach would broadly criminalize contract law on the Internet, potentially making millions of Americans criminals for the way they write e-mail and surf the Web.
This Article presents a comprehensive inquiry into the meaning of unauthorized access statutes. It begins by explaining why legislatures enacted unauthorized access statutes, and why early beliefs that such statutes solved the problem of computer misuse have proved remarkably naïve. Next, the Article explains how the courts have construed these statutes in an overly broad way that threatens to criminalize a surprising range of innocuous conduct involving computers. In the final section, the Article offers a normative proposal for interpreting “access” and “authorization.” This section argues that courts should reject a contract theory of authorization, and should narrow the scope of unauthorized access statutes to circumvention of code-based restrictions on computer privileges. The section justifies this proposal on several grounds. First, the proposal will best mediate the line between securing privacy and protecting the liberty of Internet users. Second, the proposal mirrors criminal law’s traditional treatment of crimes that contain a consent element. Third, the proposed approach is consistent with the basic theories of punishment. Fourth, the proposed interpretation avoids possible constitutional difficulties that may arise under the broader constructions that courts recently have favored.
Here’s the text of the widely-discussed Steve Ballmer e-mail on Microsoft and DRM. An excerpt that I’ve missed up to this point raises a very interesting question - is Microsoft creating a walled village on the Internet and, if so, which side of the wall do you want to be on?:
Anyone who uses a personal computer for word processing, email, data analysis or other common purposes is creating digital content – content that if unprotected might be misused by others. One of the touchstones of our Trustworthy Computing initiative is responding to customers’ demands for technology that protects the confidentiality and privacy of their information.
This year we will release Microsoft Windows Rights Management Services, a security service for Windows Server 2003 that works with applications to help customers protect sensitive Web content, documents and email. The rights protection persists in the data regardless of where the information goes, whether online or offline.
Donna’s entry today gives links to the ongoing Library of Congress hearings on the DMCA anti-circumvention provisions as well as other DMCA concerns being raised on the international education front.
Thought piece from last Sunday’s San Francisco Chronicle - a little network economics, a little copyright diatribe, a little discussion of art and culture - well worth devoting a little time to: Destroy the media [pdf]
These are fearful times for the megalithic media corporations who produce and sell movies, music, television shows, books and magazines. With each passing moment — each advance in chip and network technologies, each increase in connection speed, each additional user signed on to the Internet — computer networks are more capable of absorbing and distributing copyrighted materials for free. And so with each passing moment, folks are becoming a little less enthusiastic about paying.
…Destroying that [recording] industry is a very, very good idea. And roughly the same might be said of the slavishly starstruck movie world with its bloated blockbusters, or of book publishing with its twin obsessions on authorial prestige and print run. All these industries operate by trying to enforce on us a hierarchy of artists and ideas of their own devising for their own benefit. But it is already easily possible to publish your book yourself and distribute it free to anyone who wants to read it without using paper at all or make your own music and send it out over the telephone wires. Surely that can’t be something bad.
The only reasonable concern here is that it is going to become harder for people who want to work in the arts to make a living. It is of course worth keeping in mind that most such people are already excluded from making a living by the industry itself. But it is true that in a universe of free information, no one is going to be able to get rich making records, though certainly people will still pay to see live performances.
…Indeed, if you take some of the money out of this thing, you’ll get in compensation an increase of diversity, creativity, courage and intelligence. The audience disintegrates from a mass united by advertising campaigns into communities of sound that coalesce around expressions they find meaningful. Smaller and more various audiences entail more various and authentic art.
In short, don’t assume that it is self-evident that people can own all the reproductions of the material they generate. It isn’t self-evident at all. And don’t assume, as the entertainment industry contemplates with horror its own destruction, that it’s not going to be a pleasure for everyone else.
“When you really boil it down to what’s hot on the downloads,” Demery said, “it’s the same stuff people are buying, the same stuff people are requesting, the same stuff the radio stations are playing.”
The Register picks up on the message in Ballmer’s latest DRM pitch: DRM is your fluffy friend - Ballmer stakes out MS’ turf - see other discussion in yesterday’s Furdlog
Derek’s Perhaps I Spoke Too Soon makes an excellent point about these university file sharing crackdowns: you really can’t have it both ways. If a university sees internet access as a key instrument of education (and more & more see it that way), then it seems that using the throttling of that access as a mechanism of control is a contradiction of their stated educational mission.
It’s an open secret that the university has traditionally acted as an intermediary between law enforcement and undergraduates, giving students a semi-protected space within which they get to work through a host of issues that many only confront once they leave home. Not to say that universities condone this behavior - but there are a host of instutions created within the university to manage things that are formally illegal (e.g., recreational drugs, sexual experimentation) in ways that limit the difficulties all around.
Before I get categorized as simply a denizen of the Peoples’ Republic of Cambridge, note that, for example, running a crank lab in your dorm room would NOT qualify as "experimentation with recreational drugs." But it’s not hard to construct scenarios where simple recourse to law enforcement is not in anyone’s interest.
For example, suppose a freshman’s high school girlfriend decides to run away from home, cross state lines (using cash sent to her by her sympathetic boyfriend) and take up residence in her boyfriend’s dorm. That’s a Mann Act violation - a Federal felony! Does the university call up the FBI and ask for a raid? Certainly not! Rather, dormitory staff work through the student affairs deans and others to try to resolve the problem, with a recourse to law enforcement as a last resort. (a little more on the Mann Act)
Somehow file sharing is being distinguished from the university’s standard approaches to coping with potentially (and actually) illegal student behavior where the harm is far more difficult to characterize than the illegality. It would be interesting to speculate upon the whys of this. Is it possible that universities are resorting to this mechanistic perception for file sharing because it’s easier than confronting the real complexities of the issue at dispute? If so, that’s a tragic shame and a real abdication of the university’s role.
Derek is absolutely right that universities should be doing better - it’s their job!
Update: Here’s The Register story: Cops seize dorm PCs in college raid
Update: Slashdot coverage: Xbox Hacking Book Prepares to Fly Off Shelves; The Register: ‘Banned’ Xbox hacking book selling fast - in fact, the first printing seems to be sold out, with 52 preorders for the second printing already in place…..
A little progress on the recording artist’s side of the contract: California Panel OKs Artist Contract Reform:
A bill designed to provide California recording artists with more leverage in forging contracts is headed to the state Senate floor after winning approval from the Senate Judiciary Committee, Billboard Bulletin reports. The bill, introduced by Sen. Kevin Murray (D-Culver City), would make it a “fiduciary duty” for labels to accurately calculate royalty earnings owed to artists.
…Music industry officials oppose the bill, saying it would impede labels from developing new business models in the face of surging piracy. Recording Industry Association of America (RIAA) president Cary Sherman testified Tuesday that the bill “would distort the intensely negotiated, arms-length contractual relationship between an artist and recording label by imposing a fiduciary duty only on one party.”
According to observers at the hearing, several committee members countered that only one party, the record company, holds the financial information to calculate royalties.
Record Clubs Get a Smack Upside the Head by Federal Judge
I’m not sure what the title means (probably just a way to get the TCS crowd in an uproar), but Arnold Kling’s article Marx’s Nightmare is a nice roundup of copyright/file sharing thinking. Given Matt’s recent efforts to discriminate between theft and copyright infringement, it’s a helpful basis for thinking about elements of the issue.
I’m with those who assert that this is a demonstration of the desperation of the record industry, even though it’s also probably true that there may be some benefit to using the technology: Hit-song predictions get a scientific spin [pdf, graphic]. A discussion of Hit Song Science. Note that this is not particularly new news, as it was discussed on Slashdot this past February: New Computer Program Determines “Hitability”