Dave Winer Defends Bill Gates, Sort Of

Dave Winer asks some questions in the wake of my posting about Bill Gates' recent interview, in which Gates called people who want balance in intellectual property laws "communists." (Dave calls them "neo-communists who want musicians to give their work away," so if I understand him correctly he agrees with Gates on this, even though that language largely misrepresents the beliefs of people who are trying to restore copyright fairness.)

(UPDATE: Dave strongly disagrees with my interpretation of how he characterized Gates' statement; see comments below.)

As Dave points out, Gates is busy trying to persuade Hollywood that Microsoft is the best friend of the entertainment industry. Indeed, Microsoft's DRM moves are in large part designed to assist copyright holders in locking down everything that moves. Of course, Hollywood would restrict the development of new technology that could be used for infringing purposes, even when it has totally legitimate uses; someday this could bite Microsoft, too.

Dave is also correct that Steve Jobs has been doing some of the same things, though Apple has at least attempted to find some balance for the users, as opposed to totally bending over for the cartel.

Contrary to Dave's assertion, however, Jobs isn't getting a free ride on this, at least not from me. I've gone after Apple on many occasions for its own tendencies toward control-freakery, most recently this posting the other day. And in my book I said this:

"Even Apple has jumped aboard the DRM train, though not with the same zeal Microsoft has shown. Apple’s iTunes Music Store, which sells songs, encodes them in a format that can’t easily be converted to the wide-open MP3 or OGG formats. The DRM scheme, instituted because the music industry demanded it, gives Apple users more freedom to copy songs among different devices than we saw in prior DRM schemes. But it tends to penalize some of Apple’s best customers -- people who repeatedly buy new Macs. An iTunes Music Store customer can listen to the songs on five computers, but managing authorizations can be a hassle. It’s also important to remember that what freedoms Apple gives today can disappear tomorrow."

(In an end-note, I described how Apple had subsequently changed the iPod's' functions in a way that both added and subtracted user freedoms.)

Dave also asks if I'd criticize the people with whom I now have business relationships. If I felt sufficiently strongly about something, I would -- though at least on the question at issue here we share pretty much congruent views (Mitch Kapor, the Omidyar Network and Tim O'Reilly all support the goals of Creative Commmons, for example). But, as was the case when I wrote about Knight-Ridder while employed by that company, anything I say about these folks or enterprises would need to be taken by a reader with a grain of salt, because of the business relationships. This is always true when a journalist covers a person or organization with which he or his employer has such a relationship, and it always will be. Transparency is a useful thing, but readers also need to be cautious.

Comments

[Dave Winer]

Dan, I do not agree with Gates, or support his position. I do think I understand why he said what he said, and why he said it the way he did. I think you do go a lot easier on Apple and Jobs, I've been reading you for many years, and you rarely have a generous word for Microsoft, and usually spin positive for Apple. But Apple has been the leader in bending over for the media industry, and Microsoft the laggard.

It really hurts that you think I agree with Gates's position. I have been a leader in supporting the Creative Commons, authoring the RSS module for the CC, and fostering the use of "podsafe" music in the new art of podcasting. I recently released Frontier, a work of over 16 years, as open source under the GPL, and licensed all the docs under the CC. How could you possibly think I was against artists granting liberal rights of use of their content.

I think I made my point reasonably clearly, there are certain people and companies who are okay to target and others who are not. I have found Microsoft very willing to take criticism to heart, and not punish critics. I have seen the oppositve of Apple. No surprise that Microsoft gets more heat than Apple, it's safer to condemn them, since there usually is no retribution. I asked my readers to consider that perhaps others who are immune to crticisim might be intimidating potential critics.

Even in this rebuttal you paraphrase my comments to show Microsoft in the worst possible light. Come on Dan, let's go for balance. In this case Apple is at least equally nefarious as Microsoft, Actually they set the basis for competition, if it weren't for their aggressive pursuit of the entertainment industry's goals, Microsoft might well be representing users' interests better.

[Dan Sickles]

"Gates is busy trying to persuade Hollywood that Microsoft is the best friend of the entertainment industry"

Notice who Microsoft's real customer is. The Entertainment Industry is just a lever to extend the monopoly. "Security" is another. Without these two, Microsoft will have trouble persuading their software licensees (customers?) to upgrade to Longhorn.

Ballmer is even more scary:
http://www.theregister.co.uk/2004/10/07/ballmer_doesnt_get_it/

'Talk to practically any Microsoft executive and you'll find that they really do believe that all content that doesn't go onto a player or a computer via an 'approved' sales channel with 'real' DRM is stolen.'

[Dave Winer]

Dan Sickles, right on.

A friend of mine, not from the computer industry, an iPod and iTunes user, lost all her music, she has no idea how.

Try plugging an iPod into a different laptop. Do it often enough and you start losing your music.

Is this piracy? I think under any reasonable definition of the term, it is.

[adamsj]

Dave, when you say:

I do not agree with Gates, or support his position. I do think I understand why he said what he said, and why he said it the way he did.

it immediately raises this question for me: Could you explain why Bill Gates used the word "communist" in the passge quoted?

(I once made the mistake of saying that I knew exactly what Bob Dylan meant when he said "To live outside the law you must be honest" at a local Perl Mongers dinner. Randal Schwartz was our guest, and he immediately asked me to go ahead and explain it. I still think I know what Bob Dylan meant by that, but I turned out not to be so great at explaining it to others.)

[Dave Winer]

Adams, of course I can't explain it, I'm not Bill Gates, and I can't read minds. I can only guess, and my guess is probably wrong.

[/pd]

ACtually, when one looks at this, Apple is not getting into the spotlight ?? ..take the trend of apple...
1) Itunes users sues Apple
2) Apple sues thinksmart
3) Apple & employees do not blog under the corporation
4) Apple users now face virus issues.. it never was an issue before.
5) Dave, mentioned Apple s/w and Ipod issues.

How long will it take , for the 5% of apples user figure out, that they have been compartmentalized based on thier own brand equity loyalty ?? Will they accept it ??

The real issue here is IBM brand name is sold into China and if the OEM decideds to put on a lunix type Desk top OS then MSFT has issues. Big Issues !! Imagine walmart offering a PC for just about $150-250/- eh ?? What will be the runaway sales and its impact to Market leverage ??

[adamsj]

Dave, I don't expect you to know what's in Bill Gates' head, but I do think if you say you understand why he does something, you ought to be able to verbalize that understanding. Here's what you said:

I do think I understand why he said what he said, and why he said it the way he did.

So, knowing it's your understanding and not The Truth, why do you think Gates choose the language he did? In particular, why did he call people with whom he disagrees "communists"?

[Jeff Harrell]

There seems to be an elephant in the room here.

Advocates of the "open source" movement, principally a fellow named Stallman and his disciples, do share an important philosophical point with the late, unlamented communists: the abolition of private property rights.

For the communists, it was about the right to own the means of production. (And since everything from a horse to a tractor factory was a means of production, the net they cast was pretty wide.)

For the "open source" advocates, it's about intellectual property: computer source code, recordings of music, television shows and movies, written works and the like.

In fact, Stallman has written lengthy documents which he describes — I'm not kidding here — as "manifestos" in which he argues that we should abolish all property rights related to these types of objects.

So to that extent, the hard-core "open source" advocates are, in fact, awfully reminiscent of the communists of the bad old days.

In the rush to damn Bill Gates for using emotionally charged language, many people seem to have missed the fact that the guy has a point here. If you want to waive all rights over your work and contribute it to the public domain, that's just great. The problem arises when you try to tell others that they must do the same thing. That's when the line between being charitable and being sinister gets a little bit fuzzy. As much as I'm not a fan of Bill Gates, I think he was on solid ground when he pointed this out.

[adamsj]

Hi, Jeff,

There's a big difference between the philosophies behind "free software" (with which Richard Stallman is aligned) and "open source" (which Richard Stallman would tell you isn't at all what he's talking about).

There is a definite political left-wing tilt to "free software", but calling it "communist" is a rather sloppy use of language. If "open source" has a political orientation (which I'm not at all sure it does), it's soft-hearted libertarian. While the two movements share a lot in practice, they don't share everything, and that's because the ideas behind them are very, very different.

So when Bill Gates uses language which is both emotionally charged and (more to the point) inaccurate, I assume he's hiding the emptiness of his argument. Ask yourself: Do you do the same when you try to fob of Richard Stallman's "free software" arguments as those behind "open source"?

[step back]

Dan,
Both sides of the aisle are resorting to extreme rhetoric and name calling.

Bill Gates is calling those who oppose him commies. Stallman and gang are calling the Gates's of the world, ruthless monopolisits.

If truth be known, the ruthless monopolists are winning because they can afford to buy-off Congress.

On Dec. 8, 2004 President Bush signed into law a new fee structure which makes it more expensive for the little guy to get a patent. There was a time past when the US government subsidized the patent system. Now only the very rich can afford it.

Similar things have been happening on the copyright side. Disney and friends gets to keep Mickey even though the original deal was for Mickey to become part of the commons (public domain) in X years (forgot how many, 50, 75?)

We have the best democracy money and power can buy

[Dave Winer]

Adams, didn't you read what I wrote on Scripting News? It's a good site you should check it out.

[Jeff Harrell]

To the individual who signs his posts with the name "adamsj," I'm sure the minute factional differences between this splinter group and that splinter group seem like a big deal to people who live close to one subgroup or another. But from way back here, they all blur together. Bottom line: They are anti-profit motive and anti-property rights. That's why I say that Gates' comparison, if clumsy, was fundamentally sound.

Is this an accurate reflection of the position of the advocates, or just a PR failure? I have no idea, and frankly I don't really care that much. Either the anti-capitalist faction will continue to languish in relative obscurity, or it will finally be drowned out by more reasonable voices. The net result, to people like myself, will be the same.

I find the case of Apple very interesting in all this. Here we have a company that makes selected pieces of its intellectual property available but only on strictly non-political terms, and that builds new products on the shared IP of others, but only accepting IP from those who are similarly apolitical. As a result, they're dominating the marketplace of ideas and growing like gangbusters. I don't know whether this conclusion is sound or not, but it sure seems to me like apolitical collaborating is beating the pants off of the anti-property agenda in the market.

Sure, it's just a perception, and I'm sure that there's somebody out there who could argue that I'm wrong six ways from Sunday. But in my opinion it's perception, not reality, that's the topic of discussion here.

[Karl]

Jeff, that's a PR failure.

Many open source advocates are proponents of earning profits. The list of companies leveraging open source software in new and interesting ways to earn a profit grows day by day.

If I can suggest a book it would be "Open Sources: Voices from the Open Source Revolution". It's online and can be found here:

http://www.oreilly.com/catalog/opensources/book/toc.html

I think you will find a wide range of ideas, many of which are focused on how to earn a profit.

You're right that perception is reality - so the question is for me - how do open source advocates eliminate these generalized falsehoods laid against them. How do they overcome the image they have established with folks like yourself? Sure there are radicals amoungst them, as there are in so many other things. But it's important that they don't drown out the rest to people like yourself.

I'd argue that the net result of all this, for people like you (and me) does matter - more choice vs. more lock-in. Peception can lead us down roads we don't think we're traveling down.

[paul]

Dan, when will your book become an ebook and a FREE download?

[Dan Gillmor]

Paul, it has been available on the Web, fully and freely downloadable under a Creative Commons license, from the day it reached the stores:

http://www.oreilly.com/catalog/wemedia/book/index.csp

[Mike Torres]

"Dave is also correct that Steve Jobs has been doing some of the same things, though Apple has at least attempted to find some balance for the users, as opposed to totally bending over for the cartel."

I am not so sure this is a fair statement. AAC/Fairplay as a format has far more limited rights management than Windows Media DRM, which supports a variety of scenarios. Services like Napster and MSN Music employ WM DRM differently. WM is a platform - it doesn't have implicit rights management built-in.

Check out the different scenarios:
http://www.microsoft.com/windows/windowsmedia/drm/scenarios.aspx

Direct & indirect license acquisition, subscription services, purchase & download, rental services, video-on-demand, pay-per-view, live DRM, "one file, different licenses", NO DRM, and so on.

Windows Media gives the content creator and/or distributor the flexibility to choose the scheme which works best for each piece of content - it is on the onus of the distributor to work with the creator to ensure the right "balance for the users" - and far more often than not, the distributor is *not* Microsoft.

This lets the market (us) decide which scheme works best by supporting the provider(s) that employ it instead of being force-fed a "purchase, authorize, don't copy" scheme from a single provider (Apple).

(Disclaimer: this is my personal opinion, and does not necessarily represent the views of my employer)

[Dan Gillmor]

Windows Media gives the copyright holder the absolute right to determine whether fair use will even exist. The copyright cartel maintains that there is no right to fair use other than the right to hire a lawyer.

This is not my idea of balance.

[Steve]

Slightly off topic? Maybe not.
Just a word from a "content producer". Yip. Remember us.

As a person who spent a lifetime learning to master instruments, appreciate music, art, and to become adept at all the principles of creating a living and livelihood with music. I feel disappointed and let down somewhat that the "art" has become nothing more then "raw fuel" to run the engine of the Digital Internet Industry. Be it music, words, photos what have you. Technology is fantastic and I am glad and directly benefited from the 90's tech boom but something has gone wrong here when the technology-machine itself becomes more important then the deeper appreciation and knowledge available to be "mined" from all this content available to the average end user these days. This is where it stands right now. Just last week as it was curtain call for CES I saw this for example.

Bill Gates believes millions of
consumers worldwide would live better if a sea of music, movies, video games and television shows were piped into their earphones, laptops, cell phones, cars and living rooms. [1-5-05]

Let's see - more "music" (what, hip-hop?), more bad movies, and more TV (beyond "bad"). All beta wave stuff. Note that "reading" was not included on the list. Of course while all the valuable artists are ignored. In fact. How much downloadable "content" does a person need in this world. If they gain nothing from it other then filling up a hard drive? This, is still the big question.

Why do seemingly average everyday people STILL to this day say "hey dude, I'm not going to pay one cent for that music so bite off and get out of my face". Then, walk down the street whistling and dancing to the same tune he was talking about on his player. Go Figure.

Anyway, I thought I would put my view in because of course the artist is always shoved to the rear of the bus these days while everyone else in the Corporate Suites duke it out to see who's going to be the next "CEO Rock Star". Or the next Big Time Tech CEO to march out and watch his own latest and greatest products crash to the guffaws of the entire audience and still not get it. ["I'm to damn leveraged! It's not my fault! Heehee." Add that one to the one liners Bill for future reference.]

In the meantime, the creators of the content sit around thinking . . "well, uh, jeepers, I wonder if anyone will ever ask us our opinion?"

The true test of any faulty dogma is the exclusion of one thing for the other. And tech is no exception. Thankfully there are people working hard to humanize this thing a little bit. But the battle is far from over obviously.

Anyway I thought I would through in my Ten Bucks. Thanks for listening.

[Jeff Harrell]

You know, Karl, I love lock-in. I'm absolutely crazy-go-nuts about lock-in.

The textbook example of platform lock-in is the Mac. Know what? The Mac is, far and away, both the most technically advanced desktop computing platform in the world and the one that provides the best user experience. Whether your goal is just to manage your music, photos and home movies or to write software applications, the Mac is the platform of choice, hands down. (Gosh, I sound like I should be in marketing. Sorry 'bout that.)

That, to me, says that platform lock-in works. While the rest of the industry stagnated — the old joke goes that Windows 95 was Macintosh '84, and the new one is that Linux '05 is Windows 95 — Apple, along with NeXT, pushed the state of the art both in the user experience and the developer experience.

If all the choices are equally bad, more choice alone is not virtuous.

I want better products and tools, not a bigger selection of shabby ones.

(And with that, the topic has officially gone bye-bye. Sorry for that, but I just felt like weighing in on the whole "choice" myth.)

[Seaan]

Jeff,

As someone who has been involved in the copyright reform (reform, not elimination) movement for many years, less than 1% of the people I've met and corresponded with would come close to your distorted view. My point is that this is not "minute factional differences", but rather attributing to an extremely wide faction the views of a very small minority.

I don't know if I agree with your exact reason as to Apple's success, seems like there is a much simpler reason. DRM (etc.) is widely disliked, and a knowledgeable consumer base has repeatedly shown they will reject it (DAT, MiniDisc, DIVX, and SDMA for examples). The consumer industry has learned that keeping DRM secret (like the VCR copy protection mandated by DMCA), or secretly adding it to products that otherwise have valuable feature (DVD, iPod) is about the only way to have a successful product.

I personally became a copyright reformist when the DHRA crippled DAT, and the government mandated products that assumed I never produced any audio myself. To this day audio recording is crippled by that bought-and-paid-for law (for example iPod crippling audio recording)! The biggest difference now days is that people sneak DRM into products, or have products so flexible that they can change the DRM after purchase. Between the stealth and the government mandates, the market feedback against DRM is less immediate (what can a customer do if an unacceptable change occurs to the iPod, except to abandon their investment in the product and media). That does not mean that consumers accept DRM, or that it won’t hurt things the industry in the long run. It just means market feedback is slow, and a lot of consumers get hurt and mad meanwhile.

Steve,

I agree that the actual artist is pretty much ignored, it is pretty much the large corporations who get the laws written. Ironically I have noticed small artists supporting laws that are going to hurt them in the long run (actually even large media companies are going to be hurt in the long run, but they don't care). This mostly seems to be ignorance (the small artists don't realize all the implications), or the thought that something (anything!) should be done.

[adamsj]

Hi, Dave,

Yes, I read what you wrote on Scripting News, but it doesn't answer the question I keep asking here about something you said here. If you ever feel like addressing it, I'd love to hear the answer.

Hi, Jeff,

When you use the phrase "the minute factional differences between this splinter group and that splinter group" you point up the PR success of the 'free software' people.

I'm convinced there are only a relatively small number of people who go for the full-out 'free software' argument, which is (among other things) a political argument, as compared to the relatively large number of people who support 'open source' and other, essentially apolitical, policies. The bottom line is that 'open source' doesn't really do PR and 'free software' does. It doesn't hurt any that companies such as Microsoft, which most certainly do PR, confuse the two, just as you do.

There are other criticisms I'd make of your argument, but let's stick with this one for the time being.

P.S. The "individual who signs his posts with the name 'adamsj' " is an actual human being named John Adams. My first UNIX logon was adamsj, and I'm sentimental about it, so I sign myself with it; nevertheless, I do exist in meatspace.

[irishhead]

Check out the video of the dotcommunist manifesto as delivered by Mr. Moglen of the Free Software Foundation. He looks like a Bolshevik and his argument is lucid and incredibly powerful. And yes it is a communist argument. Gates used the word 'communist' because it pushes moral panic buttons with the US public. Free software and the burgeoning idea of copyleft is the enemy of Microsoft. Calling them 'terrorists' would have been just a little too extreme even though it might get to that eventually. Laws aimed at 'terrorism' passed in Europe in the immediate aftermath of 911 redefined terrorists as those who attempt to fundamentally alter the economic and institutional organisation of societies.

Someone mentioned Bob Dylan upthread. If the absolutely hundreds of folk and blues musicians who Bob Dylan drew heavily on throughout his career had used and enforced the strong copyright now used routinely in the corporate music industry - Bob Dylan would not exist. He stole pretty shamelessly and directly from absolutely everybody and everything he saw/read/heard when he was a teen and a twentysomething.

Strong copyright is by definition anti-creativity.

[Stephen Downes]

In matters such as this I take the position of someone who wants to give content away for free. Why would I want to do this? Well it varies from person to person, but in my case I find giving content away has increased my employability while at the same time helps in the objective of making education accessible to all. But why I want to give content away isn't really relevant; what's important here is this is a story about me and my content, and not about me wanting to take or otherwise use someone else's content or product.

Now it so happens that I've been giving my content and product away for as long as I can remember, and my work has (we'll assume by hypothesis) been widely popular and used by many agencies, public and private. Now I have no problem with this, but what I have seen happen is that when a commercial enterprise uses my work, it claims to own that work, and turns around and prohibits me from using it or sharing it any more. Writing and software is incorporated into their products and copyrighted, algorithms and ideas are patented, words and phrases are trademarked.

What has happened, from my perspective, is that the product of my work has been, since I made it publicly available, stolen. Not 'stolen' in the sense of copied or shared, but 'stolen' in the sense that they have it and I can't use it any more. Neither can anyone else. What I want is a mechanism to protect my right to give my content and product away. And that mechanism is (for software) open source (OSS) and (for content) Creative Commons (CC).

Remember, this isn't about your work or your product. You can do whatever you want with it. This is strictly about my work. And what OSS and CC do for me is that they protect my rights by saying that, if you use my work, you cannot thereby make it your own, not even by adding some (usually trivial) improvement on it. If you want to create and own the same sort of thing I created, you have to start from scratch.

If that were it, that would be enough. But there is a second part to this story.

The objective of sharing my content and product is to allow other people to use it. And in order to use it, they have to be able to find it and display it. This is, of course, the historical problem of the pamphleteer; it is not enough to write and primt the pamphlet, it must also be distributed. In the age of print I could simply put the pamphlet into people's hand, I could drop copies in the local grocery store, I could tack copies to the community bulletin board.

Today, it is even simpler. I can simply post my content on a website. I can create audio files and share them via podcasting. I can create a blog and post my RSS feed to Technorati. To day's computers, web browsers, MP3 players and the like don't care where my content came from. They take it in, and they play it.

This is all changing. It began changing with closed hardware devices such as mobile phones. It continued changing with products such as iPod. These devices don't play just any content, they play DRM protected content. And they don't play it from just anywhere, they play only content obtained from authorized repositories. Yes, I know this isn't strictly true; after all, podcasting couldn't exist without independent content. But this is the direction in which we are heading, as both Apple and Microsoft make moves to close off sources of independent content.

How can they do this? Well, they've been at it for a while and they've mastered a variety of techniques. Proprietary data formats. Undocumented APIs. Licensing and royalty costs. OEM lock-in. Bundling. Flooding the market. And, increasingly, digital rights management. They point of any of these tactics is not that they prevent the creation and distribution of free content. It is that they raise the bar so high that only the already wealthy can make content available, so that only those who are willing to sell their content can make a go of it at all. This allows the developers of such systems to sell content which would otherwise be widely available and free.

The opposite of what Microsoft and Apple are doing isn't communism. Microsoft and Apple are monopolists (or at least, wannabe monopolists). Their goal is to eliminate the competition by manipulating the marketplace. Open source and Creative Commons are the opposite. They open the marketplace. They preserve ownership to prevent corporate piracy of shared spaces (ie., shared software, shared content, shared formats). And they preserve the right of anyone to vend or distribute their content and product (on whatever terms they wish) through that space.

Bill Gates has to call open source and Creative Commons 'communist' because he has to demonize it. He has to demonize it because a free market or content and product breaks Microsoft's lock-in. If Gates came out and said, "Well, open source represents the preservation of private property and of open marketplaces," people would wonder why Microsoft campaigns so hard against it. But it it's 'communism' then it's something everybody can understand as evil.

From my perspective - open source and Creative Commons are my only hope against a complete sell-out. Without these to protect my work, the only way I could contribute would be the old-fashioned way, by surrendering all my rights to my work (the way recording artists do, commercial software developers do, academic journal authors do) in order to allow it to be sold in the closed and proprietary marketplace. And this limits not merely my access, it limits what I can say, how I can say it, and who I can say it to.

Because, in the end, as Stallman and others have often said, open source is most of all about freedom. And this is - trust me - something you feel most acutely when you have something unpopular to say.

[Stephen Downes]

P.S. More on this theme:

'Copyright, Ethics and Theft' -
http://www.downes.ca/cgi-bin/website/view.cgi?dbs=Article&key=1041806822

Reusable Media, Social Software and Openness in Education
http://www.downes.ca/files/utah.mp3 (67 megabytes - sorry, I'll make a shorter version available sometime soon)

[Karl]

Sorry Dan to help the thread stray off track, but I gotta answer this one...

I don't think the Mac defines lock-in anymore. Not since the advent of OS-X. No way. Maybe that used to be the case, but not anymore. I think the Mac has life again because of its embrace of Unix. Not despite of it.

ANYWAY... I just hate "my OS is better than your OS" stuff :) It's tiring. Tools are tools and I want the freedom to make the best choices I can.

I'd hate to see one platform vendor - Apple or Microsoft, restrict our choices anymore than I want Ford, GM or Toyota to do the same.

Back to the subject at hand though... wanting balance in intellectual property law doesn't make me communist. I'm almost insulted by the connotation. Too little protection and you lose the motivation to innovate. Too much and you restrict progress. I think it's *capitalist* to want some kind of sane balance.

[Jeff Harrell]

DRM (etc.) is widely disliked, and a knowledgeable consumer base has repeatedly shown they will reject it (DAT, MiniDisc, DIVX, and SDMA for examples).

DAT was a huge success; it's only now being supplanted by direct-to-disc recording in professional audio. MiniDisc is still enormous in Asia and the Pacific; it never took off in the US, though I have no idea why. My car has a minidisc player in it. Divx lost out on simple value. And I have no idea what SDMA is, but for some reason it makes me think of cellular phones. ;-)

I think it's probably worth mentioning that none of those technologies incorporated digital rights management. Copy protection, yes, but not digital rights management. I know what you meant, but I think keeping the terms separate is important. Copy protection is one thing and rights management is a totally different thing.

for example iPod crippling audio recording

Add an accessory from Belkin or Griffin and record all the audio on your iPod you want. Apple doesn't include a microphone because the iPod is not a recorder; it's a player. One of the things about this whole debate that annoys the heck out of me is when somebody points to a design choice made by the creator of a product and calls it "crippling," as if in some abstract Platonic ideal every product does everything, and any failure to implement every feature imaginable is an offense against God and nature.

I'm convinced there are only a relatively small number of people who go for the full-out 'free software' argument

Then how come it seems like news of yet another lawsuit alleging violation of the Gnu license emerges every few weeks? And how come whenever the discussion turns to rights management, somebody like my new friend Sean rolls out his opinion that DRM is a plague on the industry or that it's somehow mandated by law or that it's the same thing as copy protection?

Either that philosophy is more widely held that you think, or it's held by a small number of incredibly vocal people.

The "individual who signs his posts with the name 'adamsj' " is an actual human being named John Adams.

I certainly never meant to suggest that you weren't. But since "adamsj" is clearly not a name and there was no indication of your gender, I didn't know how else to refer to you.

If the absolutely hundreds of folk and blues musicians who Bob Dylan drew heavily on throughout his career had used and enforced the strong copyright now used routinely in the corporate music industry - Bob Dylan would not exist.

Please pardon my bluntness, but surely you know that that's not true. Copyright doesn't stand in the way of anybody drawing musical — or any other — influence from anybody. Copyright simply means that the original creator of a work is legally entitled, for the duration of the copyright, to determine who can and can't reproduce his work. That's it.

I think the most insidious thing that the anti-copyright folks have managed to do is to somehow convince otherwise intelligent people that copyright is bigger or more pervasive than it really is. Copyright — which, after all, is merely the legal acknowledgment of property rights that our society holds to be inherent — has become a dirty word in some circles, and frankly it pisses me off.

In matters such as this I take the position of someone who wants to give content away for free.

While I, as a professional (though hardly a successful) writer, take the position of someone who wants to sell his work, and objects strongly to the the idea that someone should feel entitled to receive it for free, or that someone should believe they're not doing me any harm when they distribute it to others without my permission.

As long as the structure and intent of our laws is such that both you — someone who wants to give stuff away — and I — someone who does not — can coexist happily, great. If the pendulum were to swing too far so that one of us would start getting sideways with the law, that would be a problem.

[Joe I.]

I think fair use is good only when there is NO compensation changing hands. If one uses some eles's work and they receive compensation (anything, not just money) then the works creator certainly has the full right under the constitution to demand a share. Otherwise it is theft and or an illegal taking of someones property period. All things in the virtual work must have a physical counterpart in the law. What if I wanted fair use of your home without paying for it etc....

By the way I use an Apple PowerBook and think their OS is the best but Apple is far more controlling than MS when it comes to use.

They control the hardware, the OS, build apps that have hooks third parties can't compete with economically, Dashboard and the digital apps come to mind. They close the iPod-iTunes system and even go so far as to sue everyone who "rumors" new products. There are stories that lawyers showed up right after Christmas on people's doorsteps serving them papers. Microsoft's DRM system is a platform that gives the owner the right to have complete control or as little as they want. Not a top-down-from-the-mothership-control like Apple but a grassroots up system. MS has the right idea here, it is how the users (owners) of the content use the system that is the issue.

[Dan Gillmor]

Joe, what you are saying is simply incorrect as a matter of law and tradition. Fair use is, among other things, the right to quote from other people's work without permission, using those quotes to build new kinds of works. You apparently (and the copyright cartel definitely) want people to ask permission and/or pay everytime they quote something. Your analogy to the physical world is bogus for the most part; and the laws of intellectual property -- which give people rights (not unlimited rights) for limited periods of time -- recognize that.

Apple is unquestionably a control freak on its own platform. But the monopoly (in a legal sense) in operating systems is Microsoft's, not Apple's. If Apple had 95+ percent of the market, I'd be just as hard on them as I am on Microsoft.

And, once again, it's unconscionable to endorse a DRM system that gives the copyright holder the ability to declare fair use technically null and void. It utterly ignores the rights and needs of society as a whole -- rights and needs that the nation's founders clearly understood but which have been perverted by the property-rights absolutists in the past half-century.

[Jeff Harrell]

You apparently (and the copyright cartel definitely) want people to ask permission and/or pay everytime they quote something.

Dan, that kind of straw-man argument isn't worthy of you. I feel pretty sure we'd all be hard pressed to dig up anybody who objects to fair use. The objection comes when people try to argue for things which are clearly not fair use — copying CDs without paying for them, for instance.

And just for the record, society has no rights. You can, and should, argue that there is a pragmatic justification for putting works in the public domain after a time, but society has no right to do so. Rights are solely the domain of individual people. Again, I know I'm being extremely nitpicky, but the point is, in my opinion, incredibly relevant.

[Dan Gillmor]

Jeff, it's not a straw man argument. It's the logical extension of absolute control, which the copyright cartel says it needs in order to prevent piracy.

In fact, it's the system that now exists when it comes to videos on DVDs or other copy-protected formats. You will be breaking the law to quote from them -- and the Hollywood studios will not give permission for those quotes without payment in almost all cases. I'm talking about brief segments of video, not copying the entire thing or substantial parts.

On the question of society's rights, you're playing a semantic game. We collectively restrict some individual freedoms, including property rights, all the time in order to protect the larger society.

[Jeff Harrell]

It becomes a straw-man argument, Dan, when you attribute a position to somebody who doesn't hold anything remotely like that position.

I used to have faith that simple human decency would put an end to the piracy problem, but it hasn't. Hell, Apple releases by far the best rights-management system for music ever created, and the first thing people do is complain about how it's so unfair. And the second thing they do is try to circumvent it!

Are you suggesting that content creators should just stop trying to prevent the widespread and criminal theft of their property? Seriously, help me understand your position here.

You will be breaking the law to quote from them

Dan, you know that's not true! Music reviewers play snippets of CDs all the time; movie reviewers play clips from movies all the time. These things are neither illegal nor objectionable. If you're making a sidewise reference to the provisions of Title 17 that were passed under the title "DMCA" a few years ago, surely you must recall that circumventing access control for the purpose of exercising fair use is specifically excepted in that statute.

Now, it is illegal to, for example, completely remove the copy-protection from a DVD. That's not something that's either necessary or desirable for fair use, but it is something that's a prerequisite to piracy, so it's reasonable that that should be prohibited.

And as for the issue of a "semantic game," I think we've seen here how the careless use of language can completely derail a productive discussion. "Open-source" advocates carelessly use the word "freedom" to describe the abolition of property rights, and the next thing you know the whole question is confused to the point of being unrecognizable. A few seemingly well-intentioned people demonize the word "copyright," and suddenly respected journalists are found claiming that it's illegal to use a clip from a movie in a review. I think that we need to get the semantics taken care of first.

But maybe that's just me.

[Joe I.]

Dan, I think Jeff is right. Society has no rights. The individual does, and is the only entity granted rights by the founders. Society can restrict those rights if they infringe on others individually but not on society....Jeff wins this I think.

Your above argument with me is fair, I'd only point out that I wasn't talking about Microsoft's operating system market share just the implementation of the DRM system they advocate. Apple controls it all, MS gives the software to the copyright owner to set the level of protection they want, from nothing to everything.

Finally, my point is not that one can't quote, link, repeat something someone has created just that they cannot use it for their OWN economical gain without making a fair compensation to the creator for "fair use." Your own license allows me to copy your book from the net (a very good one by the way) but does not allow me to sell a portion of it. Even if I give you creative credit. You have the right to the economic gain not me. And as far as tradition, well it was tradition that copyrights expired sooner than they now do by law. It was also tradition and law for most of the time this country has existed that women could not vote, so tradition is moot. The limited rights for property are death. The rights then transfer to kin or the State. So there is always and analogy in the physical world. Finally, I am not an expert, but could the congress make copyright laws etc. that have no limit in time. Forever etc...Apparently the speed limit is forever until changed, nothing says law is set in stone. Just the law must not infringe on the individual rights provided by the constitution. Everything else is fair game.

[Dan Gillmor]

Jeff, you quoted only one part of the DMCA. Yes, it says that nothing in the law should be viewed as interfering with fair use rights, but then it criminalizes the technology that one would need in order to exercise those rights. Give with one hand, take away with the other.

(Your movie review remark is close to meaningless in this context. The "quoting" you see in movie reviews on TV, or in the newspaper photographs, are all the same. They're are the clips and stills authorized by the studios and given to the reviewers. Take a video camera into the screening room to quote some other clip, and they'll have you arrested. And you are definitely breaking the law if you circumvent the DRM on the subsequent DVD to quote from it in another work.)

If this discussion is losing value, it's because one of us is an absolutist, namely you. You claim to value fair use but would let copyright holders eliminate it at their discretion.

It's not careless to use the word "freedom" in opposition to absolute property rights; you may own the land all the way to the curb on your street, but you can't prevent your community from putting a sidewalk in front of it or stop me from walking on the sidewalk. If there's a stream running through your land you can't throw industrial waste into it and force people downstream clean up after you. (Well, you probably can if you bribe the appropriate people in government...) And while you can't stop me from copying a short passage from a book you've published and using it, with appropriate citation, in my new book, you can legally stop me from "breaking into" the DVD I purchased in order to quote from it.

I'm not saying copyright holders should give up and just allow willy-nilly copying. I am saying that their rights must be balanced with the needs -- may I have your permission to use that word? -- of society as a whole. Far from demonizing copyright, I value it. But it's not an absolute right, or at least it shouldn't be.

Feel free to have the final word -- you're not listening anyway.

[Dan Gillmor]

Joe, you have every right to take a short quote from anyone's book -- whether it's under a Creative Commons license or a traditional one -- use that quote in a work of your own and then sell that new work. This is a fundamental element of fair use.

Your rights to control intellectual property have not been absolute, but they are moving in that direction, to the serious detriment of scholarship, innovation and society in a general sense.

[Jeff Harrell]

Take a video camera into the screening room to quote some other clip, and they'll have you arrested.

No, not arrested, because videotaping a movie is not grounds for arrest. It is, however, grounds for being ejected from the theater without a refund. This is as it should be, because you wouldn't point a camera at the screen of a movie theater in order to get a clip for a review. You'd point a camera at the screen of a movie theater in order to make a bootleg that you'd sell for $3 on the streets of Singapore.

And you are definitely breaking the law if you circumvent the DRM on the subsequent DVD to quote from it in another work.

No, Dan, you're not. Remember 17 USC 1201(c)(1): "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title." In other words, you're allowed to do any of the stuff that Title 17 prohibits if your purpose is only to make fair use. Now, if you take a copy-protected DVD and strip off the copy protection just because you want to, that's not fair use. But if you do it for the purpose of making fair use, you haven't even bent the law, much less broken it.

You claim to value fair use but would let copyright holders eliminate it at their discretion.

Again with the straw-man arguments, Dan. Seriously, man, I have a world of respect for you and your work, but this is just low.

you can legally stop me from "breaking into" the DVD I purchased in order to quote from it

I can legally stop you from doing anything I want, Dan, by suing you until you've run out of money. That's just a consequence of the way our civil justice system works, and it's not the issue here. The question is whether you would break any laws by making fair use of somebody else's work. And the law clearly states that you would not.

But you know what? That's not even at issue here. Because you wouldn't need to circumvent copy protection or access control in order to make fair use. There are tons of ways for you to make fair use that don't even come close to breaking the law. If you want to play a snippet of a song during a review of it, just cue the CD and play it on the air. If you want to include a clip from a movie in a review, just get a review copy from the studio and play the clip on air. And if you want to quote a passage from a book, just have the publisher send you a copy and you'll be able to quote to your heart's content. I know that last one works because a publicist at O'Reilly is mailing me a copy of your book to review right now. I didn't even have to ask her for it. I reviewed Andy Hertzfeld's book, and afterwards Kathryn suggested that I might like to read yours too. She practically bent over backwards to make sure I had everything I needed to make — drum roll please — fair use of your work.

Look: You're for fair use; I'm for fair use. Everybody's for fair use. Where are our points of disagreement? I can think of one, and maybe two. First, you seem to believe that the law says a whole bunch of stuff that, to my understanding, it just plain doesn't say. And two, if you're on the side of the folks who argue that creators should have no right to determine who gets to copy their works, then we disagree on that point. I don't know if that's your opinion and I don't want to put words in your mouth, but if that's your position, then we don't see eye to eye.

That's it. Now, can't we just be friends?

[Dan Gillmor]

I was going to let this go, but your facts are so wrong that I have to respond.

1. There are laws (federal and state) prohibiting videotaping inside movie theaters.

2. Again, you quote only part the of the DMCA that pays lip service to fair use. The law specifically prohibits the technologies that enable fair use. This isn't even a matter of serious debate in copyright circles.

3. It is not a straw man argument to say that the system you espouse would let copyright holders deny fair use at their discretion. It is a simple fact. Launching insults doesn't change facts; it merely shows you have no response.

4. You seem to be fixated on fair use as a right of critics and reviewers. (The notion that anyone -- including a movie critic -- could get a studio to send a DVD or tape and then pick a segment to quote is just wrong, by the way.) Fair use is not about radio stations and their rights to play music (which they have under compulsory licensing, among other things), or movie critics' (nonexistent) right to use whatever clips they choose in a review. It's about everyone's right to quote from other people's works, to create new works, whether they have the clout to get freebies from publishers or not. You can make fair use of my book without my publisher sending you one, incidentally, because it's on the Web under a Creative Commons license -- and you could make fair use of it by borrowing it from a library and copying short excerpts into a new work even if we'd published under a traditionally more restrictive copyright license. It would be outrageous for me to even attempt to stop you.

You claim you're for fair use. You can't be if you insist that copyright holders can withhold it, which in the digitally encrypted realm they can.

And no, I'm not on the side of people who say creators should have no right to determine who gets to copy their work. I've never even hinted at that.

I'm on the side of people who want to make fair use -- which includes (or should include) the right to quote short excerpts no matter what the medium may be. If you believe that copyright holders should be able to prevent that, as they are doing today, then indeed we don't see anything like eye to eye.

[Jeff Harrell]

I'm going to try to be brief, just because I feel like I'm really dominating the discussion here, and that's not my intent.

1. To my knowledge, videotaping inside a movie theater is against civil law, not criminal law. If I'm wrong, I retract my statement and apologize.

2. Not being a lawyer, I'm not going to go any further here. The law says X, therefore X is the law. That's my simplistic view of things. I see your position as being contrary to fact.

3. Again, I see your position as contrary to fact. We all have access to make fair use of things like CDs and DVDs and videotapes and books already, without the use of technology that facilitates piracy. The fact that you can also use tools that facilitate piracy incidentally to make fair use is not, to me personally, persuasive.

4a. I use the example of criticism as just that: an example. I can't think of another good, succinct example of fair use where it's necessary to make a copy of a piece of a work.

4b. Of course you're right that there are many other paths to making fair use. Which, from my chair, kind of deflates your (pardon the expression) "the sky is falling" alarmism. Because there are so many ways to make fair use, the status quo in IP law obviously does not endanger fair use. As I've tried to express again and again, I'm sure this is partly just me being naive, but I think it's a legitimate point nonetheless.

5. I'm glad to hear you're not on the "let's abolish IP" side of the fence. Like I said, I didn't want to presume one way or the other. Thanks for clearing that up. (And the reason I thought you might be is because you have mentioned that "Creative Commons" thing several times. In my experience, the one often goes with the other. So I thought it best not to jump to either conclusion.)

6 and last. Of course I'm for fair use. I'm also vehemently opposed to piracy. If you have any suggestions for stopping piracy without making things any less convenient for people who want to make fair use — because that's really what we're talking about here; not possible vs. impossible but convenient vs. inconvenient — then by all means let's discuss them.

In closing, have I mentioned how great it is that you entertain these kinds of discussions? If I lived anywhere near you, I'd offer to buy you a beer. Thanks.

[Ajax]

adam-
I think what Dylan meant was that there's no room for hypocrisy outside the law - that you play it as it lays, when there's no rules to conform to or hide behind.
irishead-
See the timeline? From the beginnings of human song - and more than likely singing preceded liguistic coherence - there's an unbroken stream of human musical expression; and then about 150 years ago it starts getting bottlenecked, with sheet music and the copyrighting of things that already existed. So Dylan on the one hand cashes in on the gift all that singing was up to his moment, but on the other hand he's executing his responsibilities as an artist by receiving and metabolizing, and giving back what he got transformed by his art. That he occupies an economically beneficial place doesn't change his responsibility one bit; everybody's still looking at it in economic terms - "those guys didn't make any money, he made millions - unfair!" But those guys got their riffs and verse forms and attitudes and grace notes handed to them on the same trencher, what matters there is the artistic responsibility, the art.
The money isn't what matters, though that's how it's framed.
It's a pimp's debate.
The contract's more important, more sacred, than the thing it's written about.
Not enough attention gets paid to the historical suddenness of legal ownership of things like music and stories - the way it just appears, and then within a few generations becomes the way things are and always have been.
And no attention at all gets paid to the undeniable fact that songs and stories are essential to the development of children as social human beings.
-
All musicians will say they experienced primal epiphanic moments - hearing and seeing someone sing or play - that went right into the core of their being. Imprinting - it's a transfer, a linkage, the same unbroken, unpunctuated, and unowned stream of human musical expression from the beginning. That's how it works, or worked.
In a village whose economy is run and regulated by pimps it's understandable that kids grow up wanting to whore themselves. And when virtually the only music available is delivered through pimp-controlled technology it becomes a natural thing to want to participate, as producer or client, or almost a natural thing.
The legal niceties aren't ever going to fix it, because they take place within the mercantile biosphere - where everything that isn't nailed down already is just another product waiting for a price tag.
Free is a devaluing term in that arena, it means something's less important, less weighty - the closer things get to free the more disposable they are.
Everything's measured in economic terms first now, from disasters to wars to weddings to homes.
The real problem with all this isn't intellectual property and its attributes and boundaries, it's people being conned into thinking they have to create a commons in order for one to exist.
No, we have to defend it.
It's already there, but it's been rustled, abducted, taken over by slow chicanery.
Our languages are not proprietary, and music is as essential to the human experience as language.
It's a lie that music's a "product" - just as it's a lie that a child is a "product", though it's true you can buy them, music or children, fairly cheap if you know where to look.

[Anspar Jonte]

I recently purchased an audio recording from a web site (my first paid download experience). The file format was proprietary, requiring me to install software to play or burn the file. (The recording was a gift to my mother, who has a CD player, but no computer.) The DRM software could not recognize my CD burner. I demanded and received a refund a half hour later. Then I purchased the recording on a DRM-free CD from Amazon.com. For legitimate users, DRM only serves to frustrate and restrict usage.

The thought of using a Windows DRM-dominated machine as my entertainment center is laughable. I imagine that ten years from now I won't be buying any media or even watching television because the ability to record, copy and play back on my own terms will be nonexistent. I'll read more books and spend more time with my family and be a better person for living outside the Big Media Dome.

[Anspar Jonte]

Oh, and for what it's worth, the CD was $2 cheaper (with free shipping). I wanted the download because I thought it would be faster and easier... but not with DRM.

[Alexander]

Jeff,

Regarding your comment to Dan, reproduced below:

5. I'm glad to hear you're not on the "let's abolish IP" side of the fence. Like I said, I didn't want to presume one way or the other. Thanks for clearing that up. (And the reason I thought you might be is because you have mentioned that "Creative Commons" thing several times. In my experience, the one often goes with the other. So I thought it best not to jump to either conclusion.)

I'm not sure who you've been talking to or listening to, but you're way off base if you think Creative Commons has anything to do with "abolishing IP" -- I recommend reading around their website or (founder) Lawrence Lessig's blog. If you're really interested I recommend some of his speeches and interviews and his most recent book, Free Culture.

Those resources speak for themselves, but I'll say a few words too. Creative Commons at its most ideological merely calls for a return to more balanced copyright policy. They worry about how far the law has strayed from the original constitutional purpose of copyright -- to promote the progress of science and the arts by granting exclusive rights to creators for limited times. The original term was 14 years before works went into the public domain, now it's as high as 95 years for corporate works, with no registration or renewal requirement.

Creative Commons is concerned about the problem of orphaned works and the chilling effect on culture (which always builds on the past) that effectively perpetual copyright terms have. They lament the shame that unprecedented measures of control are being instituted just as such a powerful tool, the Internet, has vastly enhanced our ability to create and communicate. They do not call for an end to copyright, but merely a more reasonable copyright system which recognizes the tremendous value in a vibrant public domain (perhaps with a copyright renewal/registration requirement after a few years, see the Public Domain Enhancement Act). I mean, geez, they don't even object to the -- in my view spurious -- analogy to physical property inherent in such terms as "intellectual property," "piracy," and "theft" used in these contexts.

Finally, they care about preserving our fair use rights, and are worried that as a technical matter, it seems that DRM systems will not be able to do so.

I believe there is an important issue as to how to frame matters of copyright policy. I for one am against the mantra of defenders of property rights vs. communists, where people who share information and knowledge, who spread and engage with ideas, are labeled as thieves and pirates -- akin to murderers, pillagers, and hijackers. We must recognize that copyright is not a property right (and was never intended as such), but is rather a short-term monopoly on publishing and distribution meant to promote progress in the sciences and arts by providing something of an incentive to creators.

Hope this helps clear things up.

[Owen]

'way back in his original entry in this thread, Dave Winer said of Apple, "if it weren't for their aggressive pursuit of the entertainment industry's goals, Microsoft might well be representing users' interests better."

IF he seriously believes what he wrote in this "the devil made me do it" excuse, I'd have to revise my previously high opinion of his wisdom...Bill Gates represents his own interests, period. As a corporation, Microsoft has never, ever demonstrated a consumer-centered priority.

Dan has one thing dead right: it matters little what the DRM law says about permitting fair use if it permits companies to deny the average person that right by controlling the technologies we need to exercise them. It's analogous to supporting the freedom to read and speak, but controlling presses and public access. I don't offhand know of any other laws that purport to deter the guilty (the pirates) by punishing the innocent.

What makes it more ironic is that the dedicated or professional thieves that benefit financially are unlikely to be discouraged by these laws...just people like me that want full use of the works we've paid for and want to act within the law.

[Daniel Conover]

The root problem isn't intellectual property and who owns/controls it. The heart of the issue is that the old system of valuing, marketing, selling and distributing IP is a square peg that fits poorly into the round hole of the new media.

Develop a microtransaction system in which consumers may seamlessly pay for what they listen, watch and read, with the majority of the money flowing back to the content creator. Allow consumers to purchase only what they want instead of forcing them to buy a bunch of other stuff with it to justify it as a "macrotransaction." That's the spirit of the technology. It's the spirit of the age. And the big losers in such a new system could be the publishers, the recording companies and the movie studios. Hmmm... might there be a connection?

I mean, talk about a screwed up system: How much of a cut does the artist get from the sale of a $15 CD? How much does the novelist get off the sale of a $27.95 hardback book? Most of the money goes to pay the overhead of the ridiculous industries that have grown up around the human desire for music and stories. Today these systems actually impede creation and distribution.

I'm a content producer. I have four kids and bills. I need to be paid. But I'd be willing to try a system in which my pay was based (at least in part) on the number of hits my work generated (at some point you have to figure in the value of residuals, advertising, etc.).

Oh, and here's the other thing: QUOTE ME. PLEASE quote me. A quote is free marketing for me and my work, and it's worth a lot more to me than some half-penny royalty. It's not artists missing the point here: It's artists' attorneys.

[setmajer]

"2. Not being a lawyer, I'm not going to go any further here. The law says X, therefore X is the law. That's my simplistic view of things. I see your position as being contrary to fact."

Jeff,

The law doesn't say 'X'. Not when taken in toto.

See one article explaining the way the DMCA affects fair use:

http://www.pcworld.com/news/article/0,aid,60463,00.asp

For the record, Adobe eventually relented and Skylarov was let go. But that was Adobe capitulating to public pressure, not any limitation in the law as-written.

As well, it doesn't seem anyone here has touched on Larry Lessig's cause celebre: copyright duration and the neverending extension. Copyright was initially for 14 years. It has been extended radically over the past 30 years, robbing the public domain and dooming thousands of works. Many of these works are of tremendous historical and cultural value to at least segments of the population. Yet they moulder away in a studio or record company vault because the studio or record company cannot realize the same profit by re-releasing them as they can from the next Britney Lopez 'hit'. Net result, works that could be generating (relatively modest) revenue or be preserved by enthusiasts, libraries and the like will instead be lost forever.

As well, Jeff, you're dead wrong about society not having rights. What, exactly, *is* society if not 'all of us'? If 'all of us' has no rights, none of us do.

Moreover, why is it that you even have any 'property' at all? Because society says you do and enforces your claim. Without the coercive force of society (as manifested by the government -- police, army, etc.) to back up your claim, you would have property only to the extent that no one else was bigger, stronger, with a bigger gun, etc. wanted to take it from you. Society (i.e., the police) protects you from such bullying. Do you think you are entitled to that benefit -- and other benefits, such as clean water, the wealth of culture passed down from previous generations, etc. -- with no responsibilities in return?

Rights are responsibilities, and vice-versa.

[odograph]

If Gates was running the "Communism" thing up the flagpole, I think we (Creative Commons supporters) can be happy with the outcome - world wide laughter.

I was especially pleased to see the story played "our way" over at The Guardian:

http://www.guardian.co.uk/online/comment/story/0,12449,1387575,00.html

I'd think (hope, at least) that the DRM-mongers will come away from this whole cycle with a bad feeling, perhaps even wishing Gates had been a bit more subtle.

BTW, I thought 2004 was a big year for this stuff, so I dropped my small donations on not just the Creative Commons, but also:

the Center for the Study of the Public Domain,

the CNUK Media Foundation,

the Electronic Freedom Foundation,

the Free Software Foundation,

Project Gutenberg,

Public Knowledge.

and the Public Patent Foundation,

... seems the time to do it.

[seaan]

I was going to mail Jeff, but could not find an email address. Fair enough, since I'm don’t usually leave one either. On the off chance he is still reading this thread, I have a few clarifications (and a real, but disposable, email address).

DAT was a huge success; it's only now being supplanted by direct-to-disc recording in professional audio.

Which almost exactly proves my point, professional versions of DAT were exempted from the law. What this means in practice, is that when I want to digitally record and distribute my own performance, I had to buy a more expensive professional model. The consumer models had government mandated “Serial Code Management” (SCM) which limited the ability to distribute copies (on the assumption I was a copy-right infringing criminal).

MiniDisc is still enormous in Asia and the Pacific; it never took off in the US, though I have no idea why.

Kind of a cheap shot, but perhaps the success was because the Asia/Pacific governments did not mandate SCM!

Divx lost out on simple value.

I think this is a very accurate statement, and the importance of which should not be over-looked. What is the value of the system? I would argue that DVD and iPods have been successful precisely because they have enough other features to overcome the negatives of their DRM. My problem with government mandates (like portions of the DHRA and the DMCA, or the recent FCC decision to mandate broadcast flag) is that they disguise and slowdown market feedback [rejection].

I think it's probably worth mentioning that none of those technologies incorporated digital rights management. Copy protection, yes, but not digital rights management.

I was being a bit sloppy, but conceptually these are pretty much the same thing (copy protection is just a very limited form of DRM). I’ve already mentioned that DAT was SCM, not straight copy-protection. You are wrong about DIVX, which actually had an extremely competent DRM design. Actually I have quite a bit more things to say about DIVX, drop me a line if interested.

Add an accessory from Belkin or Griffin and record all the audio on your iPod you want. Apple doesn't include a microphone because the iPod is not a recorder; it's a player.

When you buy the external microphone, you will find that the iPod restricts audio to mono and cuts-off above 8KHz (there are ways to hack this, but no official method). Why would Apple go to the time and expense of adding this type of limitation in the first place? The reason, as I said previously, is to avoid making a device regulated by the DHRA. If the iPod offered high quality audio recording, it would also have to follow the DHRA [now technologically obsolete] mandated SCM.

One of the things about this whole debate that annoys the heck out of me is when somebody points to a design choice made by the creator of a product and calls it "crippling," as if in some abstract Platonic ideal every product does everything, and any failure to implement every feature imaginable is an offense against God and nature.

OK, I don’t know for a fact that the only reason Apple decided to “cripple” the iPod, but there is very strong evidence. I know for a fact that Rio MP3 players were specifically designed to avoid making high-quality recordings because of the DHRA. Incidentally the reason I know this, is because it came out in a trial, when members of the RIAA tried to misuse existing copyright laws to remove non-DRM MP3 players from the market (they only wanted Secure-Digital-Music-Association players on the market). With this clarification, I’m afraid my statement no longer qualifies for your pet peeve :-)

And how come whenever the discussion turns to rights management, somebody like my new friend Sean rolls out his opinion that DRM is a plague on the industry or that it's somehow mandated by law or that it's the same thing as copy protection?

There are two specific places where the US Congress had mandated a type of DRM – the first was SCM in DHRA, and the second was MacroVision/CopyGuard in the DMCA. The FCC has “mandated” DRM in at least two situations – satellite tuners and HDTV broadcasts. I’ll leave the discussion of what these mandates actually accomplished to another post.

[seaan]

Two minor corrections:

* The DHRA should be AHRA (I've seen it in the past with DHRA, but nevermind that). It is formally know as "United States Public Law 102-563 Audio Home Recording Act of 1992".

* Second, I had a typo when I spelled out "SCM" - which of course should stand for "Serial Copy Management", and is also known as SCMS (Serial Copy Management System).

Finally, since I had to look it up anyways, and Jeff was so insistent that DRM was never mandated by law, here is the appropriate section of the AHRA that mandates DRM:

Section 1002. Incorporation of copying controls

(a) Prohibition on importation, manufacture, and distribution

No person shall import, manufacture, or distribute any digital audio recording device or digital audio interface device that does not conform to--

(1) the Serial Copy Management System;
(2) a system that has the same functional characteristics as the Serial Copy Management System and requires that copyright and generation status information be accurately sent, received, and acted upon between devices using the system's method of serial copying regulation and devices using the Serial Copy Management System; or
...