Surely you've seen this phenomina in all the books you've read on the evolution of rights and laws? That's not to say that everyone who resists [I'm using this word in the non-political sense] obeying the law will change or is in the right somehow!

What's more interesting about a lot of the "free everything" folk is how upset they get when a corporation uses something either from the common culture or based upon an existing copyrighted work."

That all said, I'm somewhat in the Doctorow camp on this stuff. Government enforced DRM creates a whole new class of property right -- stuff that I own but can't use freely.

If I have a dog and I put him on a chain it is not a dog for you to take nor even to breed puppies from nor to take a bit of and clone. As Raffi wanted to say "its mine but you can't have some unless I choose to share it". <p>I do not get anything about this other than it is the wish that is repeated so often that people who do not know it started as only a wish.

Really? If I hum "Baby Beluga" in the shower, am I stealing it? How if it work out the chords on my guitar and practice it? How if I do this with 3 other guys in my mom's basement. How if we perform it in for the kids in front of my house? How about in a concert hall with 7 people? With 500? How if we record it as an MP3 and stick it up on the net? How if we press a CD and sell it in HMV? How if someone hears that CD and hums the song in the shower?

Choose from: "no", "sometimes", "yes" and "it depends".

If you post a copy of the Daniel Lanois version and <i>do not review it</i> or if you hold a concert or if you put it on the answering maching...Copyright Board rules about this are not rocket science, not obscure and are law. Swap the property in question for the neighbour's relation to the ladder leaning at the side of the shed. If property law works for a ladder surely to God it works for the entire artistic output of a nation.

Sorry, I think the analogy between "song" and "ladder" is false. If you take my ladder, I'm out a ladder -- if I "take" your song you're not out a song.

Ah, one says, but you're out the money, wealth, prestige, or whatever that song may have generated for the artist. Which of course, brings us to the difference between singing the song in the shower and performing it in front of 500 people.

So were does DRM fit in to the equation? What interest does the state have in in not allowing me to make copies of the Lord of the Rings so I can view them on the computer or protect them against the fingers of my daughter or the ravages of time? That I _may_ steal them?

I spent $110 on them the other day; with a trivial amount of work, I could have downloaded them from the net or duplicated my cousin's copies.

Thus, I would claim there is no demonstrable need for society enforcing DRM because in fact in a society without it -- ours -- with significantly impacting the ability of artists to make money.

Furthermore, a bunch of stuff about decaying archives for the future and the right to participate in our culture :-)

No. Your analogy is false, though often trotted out. If your neighbours constantly borrow the ladder, it gets shabby, bit fall off, needs replacing loses its market resale value. Similarly, if Cory convinces me that the price of the CD is not its real price through undermining exclusivity (the cornerstone of property law) the work gets shabby and no one worries about the little ways they reduce its value.

By similar reasoning, could (or should) the government allow car companies to require that maintenance can _only_ be done by company approved shops and that no aftermarket modifications be done to the vehicle? Afterall, poorly maintained vehicles, or vehicles with distasteful modifications or ones that may cause accidents, lower the value of the car in the eyes of the broader market.

This is what DRM is, in the car world.

We have authorized car maintenance safety checking only at licensed service stations now that can refuse a safety check if there is radical deviation from the model.

Right, but I'm talking about something much more restrictive and in a very arbitrary sense, just like DRM.

For example, the inability to skip over ads in some DVDs is a function of the DRM; strong enforcement of this means that you could own a collection of Dreamworks videos of which you will be forced ... for as long as you own the collection ... to watch or sit through ads for Shrek III.

If I choose t set up m property in that way, how do your needs change my autonomy to do so? Is there a law of property that outlaws the application of copyright to new technologies? Is there something in the new tchnology that reveals a wrong in copyright in the way that the 17th and 18th century understanding of the rights of man revealed and eventually changed the laws in relation to the horrors of slavery?

I can't tell if this is hyperbole or sincere, but surely you can see the difference between "self-justifying" and making an argument about why DRM is ineffective at stopping someone who doesn't intend to purchase the DRM-restricted good in the first place, but rather intends to download it from the Internet.

Chris asserted that some DRM could prevent dishonest people from making unauthorized downloads. I countered that in order for that to be true, the DRM would have to prevent anyone, anywhere, from obtaining or manufacturing (by means of circumvention or through sideband attacks like the analog hole or the procurement of cleartext editions from other sources) a non-DRM copy which would circulate on the Internet.

DRM only affects people who buy DRM-covered goods. The goods available for download on open P2P networks have already had the DRM removed from them. If there is 1000 times more DRM or 1000 times less DRM on the commercial editions of a song, it won't matter to the person who downloads the non-DRM version from P2P.

We're not arguing about the morality of DRM, or of P2P file-sharing. We're arguing about whether DRM is an effective means of deterring or reducing P2P file-sharing.

Personal attacks on me are not material to the truth or untruth of this proposition.

I don't think it is a personal attack to make fun to you, to create an image in support of the substance. I think your grasp of the legal implications of what you are writing about is just incomplete and, so, misleading (without being wicked just to be clear) but you also have a large following which complicated and compounds what I see as an error. Do I treat you differently? On the substance, I believe you cannot segregate the decision to use or attack DRM from its legal implications let alone its moral ones. You seem to have an consistent theme in your writing that DRM is faulty and therefore undermines the validity of an owner's the desire to protect one's works from copying. Tied with your love of pop culture and the implicit desire to get at and get in at the works of others, a very interesting and active artistic desire, I still find it a dissatisfactory approach, one that reminds me of the point of view of a teen and interestly tied to the drive to consume in something of a Douglas Coupland way but without the creeping nausea about it all he appears to suffer from. That sounds worse than I mean it to be as you aslo write with and about the excitement of that time, too, and transpose it into later years in an entirely appropriate Gen X way. But if you look around here you will see that I have written about that for some time, the law and the times, the ignored need in our law to review not share on a wholesale level, the lack of novelty in the new technologies from a legal perspective. On a substantive basis in that area we disagree. I find that also a characteristic of my slacker generation and I want to comment on it, too. Something Peter Panny about it all that I undoubtably suffer from, too. And besides, if David of Blogmatrix does it, I make fun of him and point out what I think of as his error. If Steve of silverorange does it, I make fun of him, too. Turning beng made fun of into the <i>ad hominem</i> defence is not necessary or the point - making fun and being made fun of it a very useful thing. I would invite you to do the same if you cared - which you may not (which is fine) - but I would like to note that there are many things on Boing that I reference that are really good, too. But can't I make fun of you, too? People make fun of me all the time. Must I revert to haiku?

So what you're saying is, your objection is completely orthagonal to the substance of the argument I made -- which is an argument about whether DRM is useful for stopping P2P?

That your objection is that you believe that copyright is a property right (it isn't, not by law or tradition, it is the "author's limited monopoly" and what you can and can't do with it is defined in statute, for example, you can't sell someone a book with a shrinkwrapped contract that says, "by buying this book you agree to waive your right to quote it in criticism," under a legal doctrine called "abuse of copyright") and that I don't, and therefore anything I write about the technical merits or demerits of DRM should be diregarded because it's just "self-justification?"

No but I look at your position as a whole so in a sense yes as I am trying to understand what you understand about the interrelationsship between law and technology which is coloured also by pop culture desire. So when you comment about DRM and what you call copyfighting as well as hacks and that sort of thing, you present a whole. I do think that copyright is an incident of property right but not in the US constitutional sense of property right. Property is still that bundle of sticks bound together. You have to have a maker's relationship to the work to get engaged with copyright - in Rousseau's sense ownership by the act of creation as well as a positive right, a relationship between a human and a thing framed in and protected by law as all property is. That relationship you have with property colours anyone's reading of what you write. Look, I am not claiming that I am not obtuse and I could well be wrong but if you start with the proposition that there is not ownership interest in what one makes or that it is affected somehow by changes in technology, well, you are off on a path I just do not understand. As you have a desire to remix that is or at least appears to me to be connected - so therefore self-justifying. I don't think you should be disgarded at all. That is not the point of making fun. I am picking up the presentation and turning it around, putting it in the context I see, making light but not dismissing at all. But I see what you are doing not as bits but as a whole I am trying to understand. If it wasn't worth doing I would not do it.

Well, if you don't believe that the contours of copyright should change with technology, how do you feel about recorded music (which began as a pirate medium), radio (which began as a pirate medium), jukeboxes (which began as a pirate medium) and cable TV (which began as a pirate medium)?

If you're right and changes in technology shouldn't change your property rights in respect of your creations, then how do you account for the frequent changes in copyright through the 20th Century, each of which has ultimately allowed for the creation of more works, the compensation of more artists, and higher levels of compensation?

If the right to own your creations is not contingent on technology, should we eliminate the compulsory and collective licensing arrangements that make records, radio, cable, etc possible? After all, each of these arrangements reflected a weakening of creators' property interests in their works in order to accomodate technology.

Should we go back to saying that a performer may not perform a song unless she has the composer's permission? That a radio station must negotiate each airplay before the DJ can drop the needle? That a cable operator can't retransmit a broadcast program without the broadcaster's permission?

Should we force all the film studios that were founded on the infringement of Edison's patents to shut down and negotiate afresh with Edison's heirs and assigns? After all, the reason the movie industry is in Hollywood is so that the early filmmakers could infringe on Edison's film-production and film-playback patents with impunity, being so far away from his New Jersey patent agents.

How will the new media of tomorrow come into being if they don't have the advantage that all the previous media had -- that is, the advantage of expropriating those property rights that made deploying new media too expensive a proposition to entertain?

To all those questions, I would answer that we do so not to protect the buggy whip but at the same time recognize that the new technology is not a revolution so much as novelty in a large respect and nothing in it and the real joys that they bring unseat the central relationship between the maker of X and the ownership of X. Sure there have been amendments over the decades but copyright is centuries old and, although originally a grant of monopoly, it has developed into that moral and legal structure defining the right of maker to the made. Your Edison example is particularly challenging as are the Anne of Green Gables rulings in Canada. But why not have a rule where heirs benefit from their parents intangible property in the way that the Succession Law Reform Act. How has the advent of new technology altered that public policy expressed in law?<p>I am not saying that the issue is not complex but I am saying that the complexity should not in itself justify a shift from core values expressed in the network of property law. This is not to hamper new technologies so much as to caution that a precedent could be set in which other traditional relationships between people as autonomous players and the state and society could be infringed. We start treating people less like citizens and more like consumers - even when they are authors. My thoughts on this, fuzzy as they are, are most informed by good old George Grant and his writings and classes in the 60s to 80s on being wary of technology's promises and how they can implicitly undermine core society relationships if we do not pay attention. An example would be health technology affecting the question of when and what is life. Just like the relationship of the maker and the made, the question of what is life meets legal construct and is challenged by technology. If we forget that we had principles that supported the creation of these laws, then changing the laws through the driving seduction of technology can leave us as less than we are. It is not that the new technologies lack advantage but that they pose new dangers we are not evaluating when we agree to adapt our community to their demands. <p>But, personally, I am more Shaker than Luddite. More about careful acceptance and practical adoption than blanket rejection. Conversely If I am unfair with you it is that I see you more as a creature of appitite for the new than I am comfortable with. And that is maybe why I poke fun - because I care...;-)

I'm not talking about centuries-old precedents. These precedents *don't exist*. See below for a timeline of the scope and duration of copyright.

I'm talking about the changes that have been rung in *every single time* a new technology-driven medium was invented in the century that's just been and gone, starting with phonograms in 1908 and rolling all the way forward to the Betamax in 1984.

Prior to that, the only form of copyright was exclusively in written works. That copyright extended strictly and solely to verbatim reproductions.

The "centuries old" copyright you reference isn't what you think it was.

Before 17th Cen: No copyright of any kind exists. The Crown gives out arbitrary monopolies on everything from the right to produce silver ribbon to the right to produce editions of the Bible. These have no relationship to creation or originality.

17th Cen: Statute of Anne gives an exclusive right to publishers. Offers NO rights to authors.

18th Cen: Constitution gives the "Founders' copyright" which only lasts 14 years, only to registered works, only to verbatim copies. Others are allowed to translate, adapt, abridge, etc, without any permission from the author.

19th Cen: Berne convention. Longer term, recognizes the "moral right." Not widely adopted. US does not adopt until late 20th Cen (1976 US begins Berne accession).

20th Cen: First performance and display rights are given in the USA. They are strictly limited and generally governed by strict regulation in the form of compulsory licenses.

The centuries-old copyright you imagine never existed. Until less than 100 years ago, the right to prevent adaptation or modification or translation didn't exist. No copyright existed beyond the right to prohibit verbatim reproductions of written works.

The very first rights that exceeded that baseline were made in response to technology. Likewise, they were limited by technology. Each new technology created a new right (e.g. the right to control broadcasts didn't exist prior to the invention of broadcast) and a new limit to the right (you must license your works for broadcast at a fixed rate to all comers).

It is true that the Berne agreement of about 100 years ago entered copyright into the homogenized law but in the past there were also other forms of statutory legal restriction from sedition and moral crime to press licensing as well as a less free contracting context which provided other forms of state and societal control more in the nature of your complaint which I think you have now transposed to copyright. Frankly another matter is which artists could afford lawyers before 100 years ago and were partons the "owners" of art made for them prior to a certain point? I do not know. But that is a bit of a tangent perhaps. The history is not the key to this.<p>While I am appreciative of what you have posted above, are you not mixing media and content? Is it not fair that there has been a long standing recognition of the link between authorship and ownership regardless of media and that the updating of the copyright law was only done to express and take into account how these new media need to be understood to maintain the underlying ownership - even if, admittedly, most of the works of expression of this sort were dependent on the one media of the press through which only textual and image reproduction could occur. My concern is that the new media are being taken to somehow change that pattern, that the diversity of media somehow dilutes the relationship between authorship and ownership. I see nothing inherent in diversity of the media requiring a diversity or dilution of the rule of ownership by authors. Think of where the new media will go. What if there will be a means to scoop earlier, to crack into drafts - how does that affect the dignity of the person as is expressed in the constitutions of democracy if the expressive works of humans become unprotected through things we can't think of yet. I am thinking of how in 1928 Brandeis, a Justice of the United States Supreme Court indicated in a dissent in Olmstead v. US (1928) 277 U.S. 438 at 478:<blockquote class="smalltext">Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in Court, and by which it will be enabled to expose a jury to the most intimate occurrences of the home.</blockquote>The autonomy of the person and the capacity to create will be sullied to the point they are collectively squandered. These robot-tools of new technolgy would change all that not through the surveillance tools that Brandeis foresaw but through collective wasting of the right to protect what you create - which is only expressed through a medium yet must sit in the medium you select.

The longstanding separation of media and creator is not longstanding. Most copyright laws in history have been vested in publishers, not authors.

But...but...but...you then have to win. You must win. If there is not right to your own work because once there was not and technology now allows you to neato stuff you must win as long as you never care about the implications. Is that it?<p>That is despite:<ul><li>the US <i>Copyright Act</i> has existed for 215 years - a year longer in US law than the <i>Bill of Rights</i>;</li><p><li>that in 1834 it was stated by the US Supreme Court:<blockquote class="smalltext">since the statute of 8 Anne, the literary property of an author in his works can only be asserted under the statute. . . . That an author, at common law, has a property in his manuscript, and may obtain redress against any one who deprives him of it, or by improperly obtaining a copy endeavours to realise a profit by its publication cannot be doubted.</blockquote>8 Anne being from 1710;</li><p><li>that in 1853, an author's suit over translations of the content into the different medium of another language was upheld - a remix of in the available media of the times not being acceptable.</ul></li>And on and on and on. Sure copyright is not forever and not absolute but so are many incidents of propery - but copyrights "are exclusive rights of limited duration, granted in order to serve the public interest in promoting the creation and dissemination of new works." Just like a remainder or a life interest or any other time limited exclusive right to property. Exclusive being both singular in allocation to the author and the consequent power of the author to exclude others through recourse to court.<p>But you know all this. You know the history but, be honest, you don't really care. That is fine but at least say so - that the improper realization of a profit from the works of others is not as interesting to you as the ability of new media to effect interesting uses of the property of others and if there is profit in it for the person who did not make the original work so be it. I am not suggesting that the profit is the motive for you as I am convinced the mixing is. But why isn't it as simple as saying that for you? Why the untenable song and dance about what isn't in the law even though it is?

...and look what you've done! You've gone and upset the Hoogervorst twins. Jeesh.

You've gone and upset the Hoogervorst twins. Jeesh.

Yes, but luckily I don't consider myself an authority on copyrights :-)

No one here is. I just worry about alfons getting a good night's sleep over there in the Low Countries right now.

<blockquote>is an excellent example both for and against what Cory is advocating</blockquote>

I guess he's not even wrong.

Hey Alan,

I have just started a blog on gen x and the 1/4 life crisis --let's cross link

Tyler

Quarter life! Am I going to live to 128? I think you are talking "Generation Y" aren't you? We can't have muscling in on our slacker turf, you know.

Hey alan --i'm 36 and living the x life --but am offering insight for the y's and the x's --we all go through the same sh.. --right?

so shall we cross-link

I will put your link up now. --check it out

Tyler

Sounds like you are a "junior X" after all. I will have a look at your blog.

cool, thanks Alan